Skip to main content

Full text of "An essay on crimes and punishments translated from the Italian of Cæsar Bonesana, marquis Beccaria"

See other formats


HAROLD  B.  LEE  LIBRARi 

BRIGHAJM  YOLXG  I.ISIV-ERSIT^ 

PROVO,  UTAH 


Digitized  by  the  Internet  Archive 
in  2011  with  funding  from 
Brigham  Young  University 


http://www.archive.org/details/essayoncrimespun1819becc 


CONTENTS. 

INTRODUCTION .   10 

I,    ^f  .-i':  'y'^f^iyt  of  punishments 15 

II.  Of  the  r..        ,    p.uniah 17 

ill.  Consequences  qfth(  foregoing  firincifilea  ,  .  20 

IV.   Of  the  interpretation   of  laws 22 

V.  Of  the  obscurity  of  laws 26 

VI.  Of  the  proportion  between  crimes  and  punish- 
ments    28 

VII.  Of  estimating  the  degree  of  crimes ^33 

VIII.  Of  the  division  of  crimes    ...........  35 

IX.    Of  honour   [  ^ ''^9 

X.   Of  duelling 43 

XI.   Of  crimes  which  disturb  the  public  tranquillity   44i 

XII.    Of  the  intent  of  p,unishments  , 47 

XII i.  Of  the   credibility  of  witnesses 48 

XIV.  Of  evidence  and  the  proofs  of  a  crime,  and 

of  the  form  of  judgment 52 

XV.   Of  secret  accusations 56 

.  XVI.  Of  tort7ire 59 

\VII.   Of  pecuv'^'r^    'punishments  .  ,   ,  .   ......  69 

XV!II.  Of  oath.  ..;...  72 

XIX.  Of  the  advantage  of  iminediate  puni8h7nent  .  74 

XX.  Of  acts  of  violence .,.,.,  7Q 

XXI.  Of  the  punishment  of  the  nobles „  .  79 

XXII.   Of  robbery 81 

XXIII,  Of  infamy,  considered  as  a  punishment  ....  83 

XXIV.  Of  idleness ,...,..  85 

XXV,  Of  banzshmer/.  and  confiscation  ........  86 

^XVI.  Of  (he  spirit  of  family  in  states   .  . 


i«  t 


,  XXVII.  Of  the  Tnildness  qf  fiunishrnents  ......  93 

XXVIII.   Of  the  punishment  of  death 97 

XXIX.   Of  imprisonment 109 

XXX.  Of  firosecution  and  firescrifition 112 

XXXI.   Of  crimes  of  difficult  firoof  ,    ......   116 

XXXII.    Of  suicide 122 

XXXI II.  Of  smuggling 127 

XXXIV.  Of  bankrufits -  ., U/> 

XXXV.    Of  sanctuaries '....„.    I"'-. 

XXXVI     Of  rewards  for  afifirehending  or  killing 

criminals 136 

XXXVII.  Of  attemfits^  accomfilices  and  fiardon  .  .  138 

XXXVIII.  Of  suggestive  interrogations  ......   .  l4l 

XjpCIX.    Of  a  particular  kind  of  crimes  ......  143 

XL.    Of  false  ideas  of  utilit"'' 145 

'S.hl.   Of  the  means  of  prevey^llv^g  crimes  ....  148 

XLII.   Of  the  sciences  .  .  .  .  T l5l 

XLIII.   Of  magistrates 155 

XLIV.    Of  rewards 156 

XLV.    Of  education f^, 

XLVI.   Of  pardons 158 

XLVII.  Conclusion 160 


A  COMMENTARY  ON  THE  BOC^K  OF  CRIMES  AND 
PUNlSHMEiSlS. 

CHAP.  PAGE 

I,  The  Circumstances  that  occasioned  this  com' 

mentary  ....,...»...,♦ 161 

II.   Of  Punishments • 164 

III.  Of  the  punishment  of  heretics  ........  166'^ 

IV.  Of  the  eosterpation  of  heresies  .......*.    170 

V.  Of  Blasphemy  and  profanation 174 

VL  Of  the  indulgence  of  the  Jiomans  in  matters 

of  religion  o  o  ,....*..,  c  o  ..»»  .  180 


S<.' 


0NTENT9.  It 


!>   CHAP.  »AGB 

VII.  Of  the  crime  of  unlawful  fireaching.     Story 

of  Anthony 183 

VIII.  The  story  of  Simon  Moriu 187 

IX.    Of  ivitches 190 

X.   Of  capital  punishment 193 

XI.  Of  the  execution  of  sentences 196 

XII.   Of  torture  ,  .  .  .      198 

XIII.  Of  certain  sanguinary  tribunals  .....*..  200 

XIV.  Of  the  difference  between  political  and  natu- 

ral laws ,  , 203 

XV.   Of  the  crime  of  high  treason.  Of  Titus  Qates^ 

and  of  the  death  of  Angus  tin  de  Thou  .  .  206 
XVI.  Of  the  revealing  of  crimes  f  before  commis" 

sianj  by  religious  confession 212 

XVII.  Of  counterfeiting  money 217 

XVIII.  Of  domestic  theft 218 

XIX.   Of  suicide 219 

XX.   Of  a  certain  species  of  mutilation 222 

XXI.   Of  the   confiscation  consequent  upon   all  the 

crimes  which  have  been  mentioned  ,  .  .   224 
XXII.   Of  criminal  proceedings^  and  of  some  other 

forms   of  procedure 229 

X^III.  The  idea  of  a  reform  suggested  ......  238 


B 


INTRODUCTION. 


IN  every  humau.  society,  there  is  an  effort 
continually  tending  t<>  cuiifcr  on  one  part  the  height 
of  power  and  happiness^  and  to  reduce  the  other  to 
the  extreme  of  weakness  and  misery.  The  intent 
of  good  laws  is  to  oppose  this  effort,  and  to  diffuse 
their  influence  universally  and  equally.  But  men 
generally  abandoned  the  care  of  their  most  impor- 
tant concerns  to  the  uncertain  prudence  and  dis- 
cretion of  those  whose  interest  it  Is  fe)  reject  the 
best  and  wisest  institutions  ;  and  it  is  not  till  they 
have  been  led  into  a  thousand  mistakes  in  matters 
the  most  essential  to  their  lives  and  liberties,  and 
are  weary  of  suffering,  that  they  can  be  induced  to 
apply  a  remedy  to  the  evils  with  which  they  are 
oppressed.  It  is  then  they  begin  to  conceive  and 
acknowledge  the  most  palpable  truths,  which, 
from  their  very  simplicity,  commonly  escape  vul- 
gar minds,  incapable  of  analysing  objects,  accus- 
tomed to  receive  impressions  without  distinction, 


xi  INTRODUCTION, 

and  to  be  determined  rather  by  the  opinions,  of 
others  than  by  the  result  of  their  own  examination. 

If  we  look  into  history  we  shall  find  that  laws, 
which  are,  or  ought  to  be,  conventions  between 
men  in  a  state  of  freedom,  have  been^  for  the  most 
part  the  work  of  the  passions  of  a  few,  or  the  con- 
sequences of  a  fortuitous  or  temporary  necessity  ; 
not  dictated  by  a  cod  examiner  of  human  nature, 
who  knew  how  to  collect  in  one  point  the  actions 
of  a  multitude,  and  had  this  only  end  in  view,  the 
greatest  happiness  of  the  greatest  number,  Happy 
are  those  few  nations  who  have  not  waited  till  the 
slow  succession  of  human  vicissitudes  should, 
from  the  extremity  of  evil,  produce  a  transition  to 
good ;  but  by  prudent  laws  have  facilitated  the  pro- 
gress from  one  to  the  other !  And  how  great  are 
the  obligations  due  from  mankind  to  th^t  philoso- 
pher, who,  from  the  obscurity  of  his  closet,  had 
the  courage  to  scatter  among  the  multitude  the 
seeds  of  useful  truths,  so  long  unfruitful ! 

The  art  of  printing  has  diffused  the  knowledge' 
of  those  philosophical  truths,  by  which  the  rela- 
tions between  sovereigns  and  their  subjects,  and 
between  nations  are  discovered.  Bv  this  know- 
ledge  commerce  is  animated,  and  there  has 
sprung  up  a  spirit  ofemulation  and  industry,  wor- 


INTRODUCTION.  xiii 

lliy  of  rational  beings.  These  are  the  produce  of 
this  enlightened  age ;  but  the  cruelty  of  punish- 
ments, and  the  irregularity  of  proceedings  in  cri- 
minal cascSj  so  principal  apart  of  the  legislation, 
and  so  much  neglected  throughout  Europe,  has 
hardly  ever  been  called  in  question.  Errors,  ae-^ 
cumulated  through  many  centuries,  have  never 
yet  been  exposed  by  ascending  to  general  princi- 
ples ;  ,npr  has  the  force  of  acknowledged  truths 
been  ever  opposed  to  the  unbounded  licentious- 
ness of  ill-directed  power,  which  has  continually 
.produced  so  many  authorised  examples  of  the 
most  unfeeling  barbarity.  Surely,  the  groans  of 
the  weak,  sacrificed  to  the  cruel  ignorance  and  in- 
dolence of  the  powerful,  the  barbarous  torments 
lavished,  and  multiplied  with  useless  severity,  for 
crimes  either  not  proved,  or  in  their  nature  im- 
possible, the  filth  and  horrors  of  a  prison,  increas- 
ed by  the  ^lost  cruel  tormentor  of  the  miserable, 
uncertainty,  ought  to  have  roused  the  attention  of 
those  whose  business  is  to  direct  the  opinions  of 
mankind. 

The  immortal  Montesquieu  has  but  slightly 
touched  on  this  subject.  Truth^  which  is  eter- 
nally  the  same,  has  obliged  me  to  follow  the  steps 
of  that  great  man ;  but  the  studious  part  of  man- 
kind, for  whom  I  write,  will  easily  distinguish  the 


XIV  INTRODUCTION. 

superstructurfe  from  the  foundation.  I  shall  b^ 
happy  if,  with  him,  I  can  obtain  the  secret  thanks 
of  the  obscure  and  peaceful  disciples  of  reason  and 
philosophy,  and  excite  that  tender  emotion  in 
which  sensible  minds  sympathise-  with  him  who 
pleads  the  cause  of  humanity. 


PREFACE 

BY  THE  TRANSLATOR, 


OF 


M.  D.  VOLTAIRE'S  COMMENTARY. 


WHO  the  author  of  the  translation  of  M, 
de  Voltaire's  commentary  upon  the  Marquis  Bec- 
caria's  Essay  on  Crimes  and  Punishments  was, 
I  have  never  been  able  to  ascertain,  but  it  h^s 
always  been  a  matter  of  regret  to  me,  that  it 
should  have  been  suffered,  by  its  appearance  in 
print,  to  derogate  from  the  reputation  of  the  ori- 
ginal.  It  appears  indeed,  at  the  first  view^  to  be 
a  studied  attempt  to  burlesque  the  style  and  mis- 
represent the  sense  of  that  celebrated  writer. 
These  circumstances  induce  me,  upon  the  pub- 
lication of  a  new  edition'  of  the  Essay,  to  offer  a 
new  translation,  with  the  hope  that,  though  it  be 
impossible  to  transfer  to  another  language  the 
spirit  that  characterises  the  style  of  the  original,  I 
might  render  M.  de  Voltaire  intelligible  to  the 
American  reader.  That  this  was  not  the  case 
heretofore,  I  need  only  appeal  to  those  who  have 
had  the  patience  to  read  the  version  annexed  to 


-:•;•  PREFACE. 

the  first  American  edition  of  the  Essay  on  Crimes 
and  Punishments.     The  reasons  are  sufficiently- 
obvious  ;  the  translator  appears  to  have  been  im- 
perfectly acquainted  with  the  French  language, 
and  totally  unacquainted  with  English  or  French 
law  terms  and  proceedings,  a  knowledge  of  which 
is  absolutely  necessary  in  order  to  avoid  gross 
errors  in  translating  a  work,  in  which  legal  phra- 
ses so  frequently  occur.   Proper  names  also,  which 
the  French  generally  alter  to  suit  their  own  con- 
venience, appear  to  have  caused  him  consider- 
able embarrassment :  ^Mark  Antonin  being  ren- 
dered Mark  Anthony,  instead  of  Marcus  Anto- 
nins ;  and  Madame  Brinviiiiers,  is,  from  the  same 
cause,  metamorphosed  into  a  man.     For  some 
reason  also  all  the  notes  and  references  by  M.  de 
Voltaire  are  omitted.  It  may  at  the  same  time,  not 
be  improper  to  remark,  thai  the  translation  be- 
ing a  literal  one,  the  style  is  uncouth  to  a  degree  of 
barbarism,  in  consequence  of  the  gallicisms  with 
w^hich  it  abounds.     Let  it  not  be  supposed,  how^- 
ever^  from  my  strictures  upon  another,  that  I  am 
anxious  to  attract  attention  to  my  own  work,  or  to 
deprecate  criticism.   Whatever  pretensions  I  may 
have  to.  notice,  are  founded  upon  the  belief  that 
I  have  spared  no  pains  to  fulfil  the  first  duty  of  a 
translator— -a  faitliful  adherence  to  the  sense  of  my 
author,  at  the  same  time  that  I  have  endeavour. 
€d  to  do  M.  de  Voltaire  the  justice  to  make  him 


PKEFACE.  i- 

speak  English.  How  far  I  have  succeeded  in 
my  object,  is  not  for  me  to  judge ;  nor  shall  I  of- 
fer any  apology  for  an  attempt  to  render  more 
intelligible  any  subject  connected  with  the  study 
or  improvement  of  law  ;  convinced,  that  to  make 
any  exertion  with  that  view,  is  to  fulfil  one  of  the 
first  duties  which  every  man  owe^  to  his  profes» 
sion. 

Philadelphia^  September  19,  1819. 


AN 

ESSAY 

ON 

CRIMES  AND  PUNISHMENTS. 


CHAP.  I. 


Of  the  Origin  of  Punishments, 

LAWS  are  the  conditions  under  which  men, 
paturally   independent,   united  themselves  in  so- 
ciety.    Weary  of  living  in  a  continual   state   of 
war,   and  of  enjoying  a  liberty,  which  became 
of  little  value,  from  the  uncertainty  of  its   du- 
ration,  they  sacrificed    one  part  of  it,  to  enjoy 
the  rest  in  peace  and  security.     The  sum  of  all 
these  portions  of  the  liberty  of  each  individual 
constituted  the  sovereignty  of  a  nation  and  was 
deposited  in  the  hands  of  the   sovereign,  as  the 
lawful   administrator.     But  it  was  not  sufficient 
only  to  establish  this  deposit ;  it  was  also  necesr 
sary  to  defend  it  from  the  usurpation  of  each  in- 
dividual,   who    will  always  endeavour  to   take 
away  from  the  mass,  not  only  his  own  portion, 
but  to  encroach  on  that  of  others.  Some  motives 


% 


i^  AN  ESSAY  ON 

therefore,  that  strike  the  senses  were  necessary 
to  prevent  the  despotism  of  each  individual  from 
plunging  society  into  its  former  chaos.  Such 
motives  are  the  punishments  established  against 
the  infractors  of  the  laws.  I  say  that  motives 
of  this  kind  are  necessary ;  because  experience 
shows,  tjiat  the  multitude  adopt  no  established 
principle  of  conduct ;  and  because  society  is  pre- 
vented  from  approaching  \o  that  dissolution,  (to 
which^  as  well  as  all  other  parts  of  the  physical 
and  moral  world,  it  naturally  tends,)  only  by  mo- 
tives  that  are  the  immediate  objects  of  sense,  and 
which  being  continually  presented  to  the  mind, 
are  suf&cient  to  counterbalance  the  effects  of  the 
passions  of  the  individual  which  oppose  the  ge- 
neral good.  Neither  the  power  of  eloquence  nor 
the  sublimesjt  truths  are  sufficient  to  restrain,  for 
any  length  of  time,  those  passions  which  are  ex» 
cited  by  the  lively  impressions  of  present  objects. 


GRIMES  AND  PUNISHMENTS.  17 


CHAP.  II. 


Of  the  Bight  to  punish. 

EVERY  punishment  which  does  not  arise 
from  absolute  necessity,  says  the  great  Montes- 
quieu, is  tyrannical.  A  proposition  which  may 
be  made  more  general  thus:  every  act  of  autho- 
rity of  one  man  over  another,  for  which  there  is 
not  an  absolute  necessity,  is  tyrannical.  It  is 
upon  this  then  that  the  sovereign's  right  to  pun-^ 
ish  crimes  is  founded ;  that  is,  upon  the  necessi- 
ty of  defending  the  public  liberty,  entrusted  to 
his  care,  from  the  usurpation  of  individuals ;  and 
punishments  are  just  in  proportion,  as  the  liberty, 
preserved  by  the  sovereign,  is  sacred  and  valu- 
able. 

Let  us  consult  the  human  heart,  and  there  we 
shall  find  the  foundation  of  the  sovereign's  right 
to  punish ,  for  no  advantage  in  moral  policy  can 
be  lasting  which  is  not  founded  on  the  indelible 
sentiments  of  the  heart  of  man.  Whatever  law 
deviates  from  this  principle  will  always  meet  with 
a  resiiitance  which  will  destroy  it  in  the  end ;  for 
the  smallest  force  continually  applied  will  over- 


iUB  AN  ESSAY  OX 

come  the  most  violent  motion  communicated  to 
bodies. 

No  man  ever  gave  up  his  liberty  merely  for  the 
good  of  the  public.  Such  a  chimera  exists  only 
in  romances.  Every  individual  wishes,  if  possible, 
to  be  exempt  from  the  compacts  that  bind  the 
rest  of  mankind. 

The  multiplication  of  mankind,  though  slotv, 
being  too  great,  for  the  means  which  the  earth, 
in  its  natural  state,  offered  to  satisfy  necessities 
which  every  day  became  more  numerous,  obliged 
men  to  separate  again,  and  form  new  societies. 
These  naturally  opposed  the  first,  and  a  state  of 
war  was  transferred  from  individuals  to  nations. 

Thus  it  was  necessity  that  forced  men  to  give 
up  a  part  of  their  liberty.  It  is  certain,  then,  that 
every  individual  would  choose  to  put  into  the  pub- 
lie  stock  the  smallest  portion  possible,  as  much 
only  as  was  sufficient  to  engage  others  to  defend 
it.  The  aggregate  of  these,  the  smallest  portions 
possible,  forms  the  right  of  punishing;  all  that 
extends  beyond  this,  is  abuse,  not  justice. 

Observe  that  by  justice  I  understand  nothing 
more  than  that  bond  which  is  necess^iry  to  keep 


eHIMES^AND  PUNISHMENTS.  19 

the  interest  of  individuals  united,  without  which 
men  would  return  to  their  original  state  of  bar- 
barity. All  punishments  which  exceed  the  ne- 
cessity of  preserving  this  bond  are  in  their  nature 
unjust.  We  should  be  cautious  how  we  associate 
with  the  word  justice  an  idea  of  any  thing  real, 
such  as  a  physical  power,  or  a  being  that  actually 
exists.  I  do  not,  by  any  means,  speak  of  the 
justice  of  .God,  which  is  of  another  kind,  and  re- 
fers immediately  to  rewards  and  punishments  in 
a  life  to  come. 


20  AN  ESSAY  ON 


CHAP.  III. 


Consequences  of  the  foregoing  Principles. 

THE  laws  only  can  determine  the  punishment 
of  crimes ;  and  the  authority  of  making  penal 
laws  can  only  reside  with  the  legislator,  who  re- 
presents the  whole  society  united  by  the  social 
compact.  No  magistrate  then,  (as  he  is  one  of 
the  society,)  can,  with  justice,  inflict  on  any  other 
member  of  the  same  society  punishment  that  is 
not  ordained  by  the  laws.  But  as  a  punishment, 
increased  beyond  the  degree  fixed  by  the  law,  is 
the  just  punishment  with  the  addition  of  another, 
it  follows  that  no  magistrate,  even  under  a  pre- 
tence of  zeal,  or  the  public  good,  should  increase 
the  punishment  already  determined  by  the  laws. 

If  every  individual  be  bound  to  society,  society 
is  equally  bound  to  him,  by  a  contract  which, 
from  its  nature  equally  binds  both  parties.  This 
obligation,  which  descends  from  the  throne  to  the 
cottage,  and  equally  binds  the  highest  and  lowest 
of  mankind,  .signifies  nothing  more  than  that  it  is 
the  interest  of  all,  that  conventions,  which  are 
useful  to  the  greatest  number,  should  be  punctu- 
ally  observed.  The  violation  of  this  compact  by 
any  individual  is  an  introduction  to  anarchy. 


CRIMES  AND  PUNISHMENTS.  21 

The  sovereign,  who  represents  the  society  it- 
self, can  only  make  general  laws  to  bind  the 
menibers ;  but  it  belongs  not  to  him  to  judge 
whether  any  individual  has  violated  the  social 
compact,  or  incurred  the  punishment  in  conse- 
quence. For  in  this  case  there  are  two  parties, 
one  represented  by  the  sovereign,  who  insists  up- 
on the  violation  of  the  contract,  and  the  other  is 
the  person  accused,  who  denies  it.  li  is  necessa- 
ry then  that  there  should  be  a  third  person  to  de- 
cide this  contest ;  that  is  to  say,  a  judge,  or  ma- 
gistrate, from  whose  determination  there  should 
be  no  appeal ;  and  this  determination  should  con- 
sist of  a  simple  affirmation  or  negation  of  fact. 

If  it  can  only  be  proved,  that  the  severity  of 
punishments,  though  not  immediately  contrary 
to  the  public  good,  or  to  the  end  for  which  they 
were  intended,  viz.  to  prevent  crimes,  be  use- 
less, then  such  severity  would  be  contrary  to 
those  beneficent  virtues,  which  are  the  conse- 
quence of  enlightened  reason,  which  instructs  the 
sovereign  to  wish  rather  to  govern  men  in  a 
state  of  freedom  and  happiness  than  of  slavery. 
It  would  also  be  contrary  to  justice  and  the  social 
compact. 


32  AN  ESSAY  m 


CHAP.  IV. 


Of  the  Interpretation  of  Laws, 

JUDGES,  in  criminal  cases,  have  no  right  to 
interpret  the  penal  laws,  because  they  are  not  le- 
gislators. They  have  not  received  the  laws  from 
.  our  ancestors  as  a  domestic  tradition,  or  as  the 
will  of  a  testator,  which  his  heirs  and  executors 
are  to  obey  ;  but  they  receive  them  from  a  socie- 
ty actually  existing^  or  from  the  sovereign,  its  re- 
presentative. Even  the  authority  of  the  laws  is 
not  founded  on  any  pretended  obligation,  or  an- 
cient convention  ;  which  must  be  null,  as  it  can- 
not bind  those  who  did  not  exist  at  the  time  of 
its  institution ;  and  unjust,  as  it  would  reduce 
men  in  the  ages  following,  to  a  herd  of  brutes, 
without  any  power  of  judging  or  acting.  The 
laws  receive  their  force  and  authority  from  an  oath 
of  fidelity,  either  tacit  or  expressed,  which  living 
subjects  have  sworn  to  their  sovereign,  in  order  to 
restrain  the  intestine  fermentation  of  the  private 
interest  of  individuals.  From  hence  springs  their 
true  and  natural  authority.  Who  then  is  their 
lawful  interpreter?  The  sovereign,  that  is,  the 
representative  of  society,  and  not  the  judge,  whose 
office  is  only  to  examine  if  a  man  have  or  have 
not  committed  an  action  contrat  v  to  the  laws. 


CRIMES  AND  PUNISHMENTS.  23 

In  every  criminal  cause  the  judge  should  reason 
syllogistically.  The  major  should  be  the  general 
law ;  the  minor,  the  conformity  of  the  action,  or 
its  opposition  to  the  laws  ;  the  conclusion^  liberty, 
or  punishment.  If  the  judge  be  obliged  by  the 
imperfection  of  the  laws,  or  chooses  to  make  any 
other  or  more  syllogisms  than  this,  it  will  be  an 
introduction  to  uncertainty. 

There  is  nothing  more  dangerous  than  the 
common  axiom,  the  spirit  of  the  laws  is  to  be  con- 
sidered. To  adopt  it  is  to  give  way  to  the  tor- 
rent of  opinions.  This  may  seem  a  paradox  to 
vulgar  minds,  which  are  more  strongly  affected 
by  the  smallest  disorder  before  their  eyes,  than  by 
the  most  pernicious  though  remote  consequences 
produced  by  one  false  principle  adopted  by  a 
nation. 

Our  knowledge  is  in  proportion  to  the  number 
of  our  ideas.  The  more  complex  these  are,  the 
greater  is  the  variety  of  positions  in  which  thej^ 
may  be  considered.  Every  man  hath  his  own 
particular  point  of  view,  and,  at  different  times, 
sees  the  same  objects  in  very  different  lights. 
The  spirit  of  the  laws  will  then  be  the  result  of 
the  good  or  bad  logic  of  the  judge  ;  and  this  will 
depend  on  his  good  or  bad  digestion,  on  the  vio- 
lence of  his  passions,  on  the  rank  or  condition 


24  '       AN  ESSAY  ON 

of  the  accused,  or  on  his  connections  with  the 
judge,  and  on  all  those  little  circumstances  which 
change  the  appearance  of  objects  in  the  fluctua- 
ting mind  of  man.  Hence  we  see  the  fate  of  a 
delinquent  changed  many  times  in  passing  through 
the  different  courts  of  judicature,  and  his  life  and 
liberty  victims  to  the  false  ideas  or  ill  humour  of 
the  judge,  who  mistakes  the  vague  result  of  his 
own  confused  reasoning  for  the  just  interpretation 
of  the  laws.  We  see  the  same  crimes  punished 
in  a  different  manner  at  different  times  in  the 
same  tribunals,  the  consequence  of  not  having 
consulted  the  constant  and  invariable  voice  of  the 
laws,  but  the  erring  instability  of  arbitrary  inter- 
pretation. • 

The  disorders  that  may  arise  from  a  rigorous 
observance  of  the  letter  of  penal  laws  are  not  to 
be  compared  with  those  produced  by  the  inter- 
pretation of  them.  The  first  are  temporary  in- 
conveniences which  will  oblige  the  legislature  to 
correct  the  letter  of  the  law,  the  want  of  precise- 
ness  and  uncertainty  of  which  has  occasioned 
these  disorders  ;  and  this  will  put  a  stop  to  the 
fatal  liberty  of  explaining,  the  source  of  arbitrary 
and  venal  declamations.  When  the  code  of  laws 
is  once  fixed,  it  should  be  observed  in  the  literal 
sense,  and  nothing  more  is  left  to  the  judge  than 
to  determine  whether  an  action  be  or  be  not  con- 


CRIMES  AND  PUNISHMENTS  25 

formable  to  the  written  law.  When  the  rule  of 
right,  which  ought  to  direct  the  actions  of  the 
philosopher,  as  well  as  the  ignorant,  is  a  matter  of 
controversy,  not  of  fact,  the  people  are  slaves  to 
the  magistrates.  The  despotism  of  this  multitude 
of  tyrants  is  more  insupportable  the  less  the  dis- 
tance is  between  the  oppressor  and  the  oppressed, 
more  fatal  than  that  of  one,  for  the  tyranny  of 
many  is  not  to  be  shaken  off  but  by  having  re- 
course to  that  of  one  alone.  It  is  more  cruel,  as 
it  meets  with  more  opposition,  and  the  cruelty  of 
a  tyrant  is  not  in  proportion  to  his  strength,  but 
to  the  obstacles  that  oppose  him. 

These  are  the  means  by  which  security  of  per- 
son and  property  is  best  obtained,  which  is  just, 
as  it  is  the  purpose  of  uniting  in  society;  and  it  is 
useful  as  each  person  may  calculate  exactly  the 
inconveniences  attending  every  crime.  By  these 
means,  subjects  will  acquire  a  spirit  of  independ- 
ence and  liberty,  however  it  may  appear  to  those 
who  dare  to  call  the  weakness  of  submitting 
blindly  to  their  capricious  and  interested  opinions 
by  the  sacred  name  of  virtue. 

These  principles  will  displease  those  who  have 
made  it  a  rule  with  themselves  to  transmit  to  their 
inferiors  the  tyranny  they  suffer  from  their  supe- 

D  • 


26  AN  ESSAY  ON 

riors.     I  should  have  every  thing  to  fear  if  tyrants 
were  to  read  my  book ;  but  tyrants  never  read. 


CHAP.  V 


Of  the  Obscurity  of  Laws. 

IF  the  power  of  interpreting  law^s  be  an  evil, 
obscurity  in  them  must  be  another,  as  the  former 
is  the  consequence  of  the  latter.  This  evil  will  be 
still  greater  if  the  laws  be  written  in  a  language 
unknown  to  the  people ;  who,  being  ignorant  of 
the  consequences  of  their  own  actions,  become 
necessarily  dependent  on  a  few,  who  are  interpre- 
ters of  the  laws,  which,  instead  of  being  public 
and  general,  are  thus  rendered  private  and  parti- 
cular. What  must  we  think  of  mankind  when  we 
reflect,  that  such  is  the  established  custom  of  the 
greatest  part  of  our  polished  and  enlightened  Eu- 
rope ?  Crimes  will  be  less  frequent  in  proportion 
as  the  code  of  laws  is  more  universally  read  and 
understood;  for  there  is  no  doubt  but  that  the 
eloquence  of  the  passions  is  greatly  assisted  by  the 
ignorance  and  uncertainty  of  punishments. 

Hence  it  follows,  that,  without  written  laws, 
no  society  will  ever  acquire  a  fixed  form  of  go- 
vernment, in  which  the  power  is  vested  in  the 


CKIl^IES  AND  PUNISHMENTS.  53^ 

whole,  and  not  in  any  part  of  the  society ;  and  in 
which  the  laws  are  not  to  be  altered  but  by  the 
will  of  the  whole,  nor  corrupted  by  the  force  of 
private  interest.  Experience  and  reason  show  us 
that  the  probability  of  human  traditions  dimi- 
nishes in  proportion  as  they  are  distant  from  their 
sources.  How  then  can  laws  resist  the  inevitable 
force  of  time,  if  thercbe  not  a  lasting  monument 
of  the  social  compact. 

Hence  we  see  the  use  of  printing,  which  alone 
makes  the  public,  and  not  a  few  individuals,  the 
guardians  and  defenders  of  the  laws.  It  is  this 
art  which,  by  diffusing  literature,  has  gradually 
dissipated  the  gloomy  spirit  of  cabal  and  intrigue. 
To  this  art  it  is  owing  that  the  atrocious  crimes 
of  our  ancestors,  who  were  alternately  slaves 
and  tyrants,  are  become  less  frequent.  Those 
who  are  acquainted  with  the  history  of  the  two 
or  three  last  centuries  may  observe,  how  from  the 
lap  of  luxury  and  effeminacy  have  sprung  the 
most  tender  virtues,  humanity,  benevolence,  and 
toleration  of  human  errors.  They  may  contem- 
plate the  effects  of  what  was  so  improperly  called 
ancient  simplicity  and  good  faith;  humanity  groan- 
ing under  implacable  superstition,  the  avarice  and 
ambition  of  a  few  staining  with  human  blood  the 
thrones  and  palaces  of  kings^  secret  treasons  and 


2S  AN  ESSAY  ON 

public  massacres,  every  noble  a  tyrant  over  the 
people,  and  the  ministers  of  the  gospel  of  Christ 
bathing  their  hands  in  blood  in  the  name  of  the 
God  of  all  mercy.  We  may  talk  as  we  please  of 
the  corruption  aud  degeneracy  of  the  present  age, 
but  happily  we  see  no  such  horrid  examples  of 
cruelty  and  oppression. 


CHAP.  VI. 


Of  the  Proportion  between  Crimes  and  Tiinishmpnts. 

IT  is  not  only  the  common  interest  of  mankind 
that,  crimes  should  not  be  committed,  but  that 
crimes  of  every  kind  should  be  less  frequent,  in 
proportion  to  the  evil  tbey  produce  to  society. 
Therefore  the  means  made  use  of  by  the  legisla- 
ture to  prevent  crimes  should  be  more  powerful, 
in  proportion  as  they  are  destructive  of  the  public 
safety  and  happiness,  and  as  the  inducements  to 
commit  them  are  stronger.  Therefore  there  ought 
to.be  a  fixed  proportion  between  crimes  and  pu- 
nishments. 

It  is  impossible  to  prevent  entirely  all  the  dis- 
orders which  the  passions  of  mankind  cause  in 
society.     These  disorders  increase  in  proportion 


CRIlVfES  AND  PUNISPTMENTS.  29 

to  the  number  of  people  and  the  opposition  of 
private  interests.  If  we  consult  history,  we  shall 
find  them  increasing,  in  every  state,  with  the  ex. 
tent  of  dominion.  In  political  arithmetic,  it  is 
necessary  to  substitute  a  calculation  of  pi  ohabili- 
ties  to  mathematical  exactness.  That  forci  which 
continually  impels  us  to  our  own  private  hiterest, 
like  gravity,  acts  incessantly,  unless  it  meets  with 
an  obstacle  to  oppose  it.  The  effects  of  this  force 
are  the  confused  series  of  human  actions.  Pun- 
ishments, which  I  would  call  poliiical  obstacles, 
prevent  the  fatal  effects  of  private  interest,  with- 
out  destroying  the  impelling  cause,  whicWs  that 
sensibility  inseparable  from  man.  The  legislator 
acts,  in  this  case,  like  a  skilful  architect,  who  en- 
deavours to  counteract  the  force  of  gravity  by 
combining  the  circumstances  which  may  contri- 
bute to  the  strength  of  his  edifice. 

The  necessity  of  uniting  in  society  being  grant- 
ed, together  with  the  conventions  which  the  op- 
posite interests  of  individuals  must  necessarily  re- 
quire, a  scale  of  crimes  may  be  formed,  of  which 
the  first  degree  should  consist  of  those,  which  im- 
mediately tend  to  the  dissolution  of  society,  and 
the  last  of  the  smallest  possible  injustice  done  to 
a  private  member  of  that  society.  Between  these 
extremes  will  be  comprehended  ail  actions  con- 


30  AN  ESSAY  ON 

trary  to  the  public  good  which  are  called  criminal, 
and  which  descend  by  insensible  degrees,  de- 
creasing from  the  highest  to  the  lowest.  If  ma- 
thematical calculation  could  be  applied  to  the  ob- 
scure and  infinite  combinations  of  human  actions, 
there  might  be  a  corresponding  scale  of  punish- 
ments, descending  from  the  greatest  to  the  least ; 
but  it  will  be  sufficient  that  the  wise  legislator 
mark  the  principal  divisions,  without  disturbing 
the  order,  left  to  crimes  of  the  Jir,%t  degree  be  as- 
signed punishments  of  the  last.  If  there  were  an 
exact  and  universal  scale  of  crimes  and  punish- 
ments,  we  should  there  have  a  common  measure 
of  the  degree  of  liberty  and  slavery,  humanity  and 
cruelty  of  different  nations. 

Any  action  which  is  not  comprehended  in  the 
above  mentioned  scale  will  not  be  called  a  crime, 
or  punished  as  such,  except  by  those  who  have 
an  interest  in  the  denomination.  The  uncertainty 
of  the  extreme  points  of  this  scale  hath  produced 
a  system  of  morality  which  contradicts  the  laws, 
a  multitude  of  laws  that  contradict  each  other, 
and  many  which  expose  the  best  men  to  the  se- 
verest punishments,  rendering  the  ideas  of  vice  and 
virtue  vague  and  fluctuating,  and  even  their  exist- 
ence doubtful.  Hence  that  fatal  lethargy  of  po- 
litical bodies,  which  terminates  in  their  destruction. 


CRIMES  AND  PUNISHMENTS.  31 

Whoever  reads,  with  a  philosophic  eye,  the 
history  of  nations,  and  their  laws,  will  generally 
find,  that  the  ideas  of  virtue  and  vice,  of  a  good 
or  bad  citizen,  change  with  the  revolution  of 
ages,  not  in  proportions  to  the  alteration  of  cir- 
cumstances,  and  consequently  conformable  to  the 
common  good,  but  in  proportion  to  the  passions 
and  errors  by  which  the  different  lawgivers  were 
successively  influenced.  He  will  frequently  ob- 
serve that  the  passions  and  vices  of  one  age  are 
the  foundation  of  the  morality  of  the  following ; 
that  violent  passion,  the  offspring  of  fanaticism 
and  enthusaism,  being  weakened  by  time,  which 
reduces  all  the  phenomena  of  the  natural  and 
moral  world  to  an  equality,  become,  by  degrees, 
the  prudence  of  the  age,  and  an  useful  instrument 
in  the  hands  of  the  powerful  or  artful  politician. 
Hence  the  uncertainty  of  our  notions  of  honour 
and  virtue  ;  an  uncertainty  which  will  ever  re- 
main, because  they  change  with  the  revolutions  of 
time,  and  names  survive  the  things  they  originally 
signified ;  they  change  with  the  boundaries  of 
states,  which  are  often  the  same  both  in  physical 
and  moral  geography. 

Pleasure  and  pain  are  the  only  springs  of  ac- 
tions in  beings  endowed  with  sensibility.  Even 
amongst  the  motives  which  incite  men  to  acts  of 
religiDn,  the  invisible  legislator  has  ordained  re- 


32  AN  ESSAY  ON 

wards  and  punishments.  From  a  partial  distribu- 
tioii  of  these  will  arise  that  contradiction,  so  little 
observed,  because  so  common,  I  mean  that  of 
punibhiiii^  by  the  laws  the  crimes  which  the  laws 
have  occasioned.  If  an*  equal  punishment  be 
ordained  for  two  crimes  that  injure  society  in 
diifcrent  degrees^  there  is  nothing  to  deter  men 
from  committing  the  greater  as  often  as  it  is  at- 
tended with  greater  advantage. 


CRIMES  AND  PUNISHMENTS.  53  - 


CHAP.  VII. 

Of  estimating  the  Degree  of  Crimes. 

THE  foregoing  reflections  authorise  me  to  as- 
sert that  crimes  are  only  to  be  measured  by  the 
injury  done  to  society. 

They  err,  therefore,  who  imagine  that  a  crime 
is  greater  or  less  according  to  the  intention  of  the 
person  by  whom  it  is  committed;  for  this  will 
depend  on  the  actual  impression  of  objects  on  the 
senses,  and  on  thv^  previous  disposition  of  the 
mind ;  both  which  will  vary  in  different  persons, 
and  even  in  the  same  person  at  different  times, 
according  to  the  succession  of  ideas,  passions,  and 
circumstances.  Upon  that  system  it  would  be 
necessary  to  form,  not  only  a  particular  code  for 
every  individual,  but  a  new  penal  law  for  every 
crime.  Men,  often  with  the  best  intention,  do 
the  greatest  injury  to  society,  and,  with  the  worst^ 
do  it  the  most  essential  services. 

Others  have  estimated  crimes  rather  by  the  dig- 
nity of  the  person  offended  than  by  their  conse- 
quences to  society.  If  this  were  the  true  stand- 
ardj  the  smallest  irreverence  to  the  Divine  Being 

E 


34,  AN  ESSAY  ON 

ought  to  be  punished  with  infinitely  more  severity 
than  the  assassination  of  a  monarch. 

In  short,  others  have  imagined,  that  the  great- 
ness of  the  sin  should  aggravate  the  crime.  But 
the  fallacy  of  this  opinion  will  appear  on  the 
slightest  consideration  of  the  relations  between 
man  and  man,  and  between  God  and  man.  The 
relations  between  man  and  man  are  relations  of 
equality.  Necessity  alone  hath  produced,  from 
the  opposition  of  private  passions  and  interests, 
the  idea  of  public  utility,  which  is  the  foundation 
of  human  justice.  The  other  are  relations  of 
dependence,  between  an  imperfect  creature  and 
his  Creator,  the  most  perfect  of  beings,  who  has 
reserved  to  himself^  the  sole  right  of  being  both 
lawgiver  and  judge;  for  he  alone  can,  without 
injustice,  be,  at  the  same  time,  both  one  and  the 
other.  If  he  hath  decreed  eternal  punishments 
for  those  who  disobey  his  will,  shall  an  insect 
dare  to  put  himself  in  the  place  of  divine  justice, 
or  pretend  to  punish  for  the  Almighty,  who  is 
himself  all  sufficient,  who  cannot  receive  impres- 
sions of  pleasure  or  pain,  and  who  alone,  of  all 
other  beings,  acts  without  being  acted  upon?  The 
degree  of  sin  depends  on  the  malignity  of  the 
heart,  which  is  impenetrable  to  finite  beings.  . 
How  then  can  the  degree  of  sin  serve  as  a  stand- 


CRIMES  AND  PUNISHMENTS.  35 

ard  to  determine  the  degree  of  crimes  ?  If  that 
were  admitted,  men  may  punish  when  Gcd  par- 
dons,  and  pardon  when  God  condemns  ;  and  thus 
act  in  opposition  to  the  Supreme  Being. 


CHAP.  VIII. 

Of  the  Division  of  Crimes, 

WE  have  proved,  then,  that  crimes  are  to  be 
estimated  by  the  injury  done  to  society.  This  is 
one  of  those  palpable  truths  which  though  evi- 
dent to  the  meanest  capacity,  yet  by  a  combina- 
tion of  circumstances,  are  only  known  to  a  few 
thinking  men  in  every  nation,  and  in  every  age. 
But  opinions,  worthy  only  of  the  despotism  of 
Asia,  and  passions,  armed  with  power  and  autho- 
rity, have,  generally  by  insensible,  and  sometimes 
by  violent  impressions  on  the  timid  credulity  of 
men,  effaced  those  simple  ideas  which  perhaps 
constituted  the  first  philosophy  of  an  infant  society. 
Happily  the  philosophy  of  the  present  enlightened 
age  seems  again  to  conduct  us  to  the  same  prin- 
ciples, and  with  that  degree  of  certainty  which  is 
obtained  by  a  rational  cxamiaation  and  repeated 
experience. 


,3'6  AN  ESSAY  ON 

A  scrupulous  adherence  to  order  would  require, 
that  we  should  now  examine  and  distinguibh  the 
different  species  of  crimes  and  the  modes  of  pun- 
ishment; but  they  are  so  variable  in  their  nature, 
from  the  different  circumstances  of  ages  and  coun- 
tries, that  the  detail  would  be  tiresome  and  endless. 
It  will  be  sufficient  for  my  purpose  to  point  out 
the  most  general  principles,  and  the  most  common 
and  dangerous  errors,  in  order  to  undeceive  as  well 
those  who,  from  a  mistaken  zeal  for  liberty,  would 
introduce  anarchy  and  confusion,  as  those  who 
pretend  to  reduce  society  in  general  to  the  regu- 
larity of  a  covenant. 

Some  crimes  are  immediately  destructive  of  so- 
ciety, or  its  representative  ;  others  attack  the  pri- 
vate security  of  the  life,  property,  or  honour  of 
indiyiduals ;  and  a  third  class  consists  of  such  ac- 
tions as  are  contrary  to  the  laws  which  relate  t© 
the  general  good  of  the  community. 

The  first,  which  are  of  the  highest  degree,  as 
they  are  most  destructive  to  society,  are  called 
crimes  o{ leze -majesty.^  Tyranny  and  ignorance, 
which  have  confounded  the  clearest  terms  and 
ideas,  have  given  this  appellation  to  crimes  of  a 
different  nature,  and  consequently  have  establish- 

*  High  Treason. 


CRIMES  AND  Pim^SHMENTS.  ^T 

ed.  the  same  pui  ishment  for  each  ;  and,  on  this 
occasion,  as  on  a  thousand  others,  men  have  been 
sacrificed  victims  to  a  word.  Every  crime,  even 
of  the  most  private  nature,  injures  society ;  but 
every  crime  does  not  threaten  its  immediate  de- 
struction. Moral  as  well  as  physical  actions  have 
their  sphere  of  activity  differently  circumscribed, 
like  all  the  movements  of  nature,  by  time  and 
space ;  it  is  therefore  a  sophistical  interpretation, 
the  common  philosophy  of  slaves,  that  would  con- 
found the  limits  of  things  established  by  eternal 
truth. 

To  these  succeed  crimes  which  are  destructive 
of  the  security  of  individuals.  This  security  being 
the  principal  end  of  all  society,  and  to  which  every 
citizen  hath  an  undoubted  right,  it  becomes  indis- 
pensably necessary,  that  to  these  crimes  the  great- 
est  of  punishments  should  be  assigned. 

The  opinion,  that  every  member  of  society  has 
a  right  to  do  any  thing  that  is  not  contrary  to  the 
laws,  without  fearing  any  other  inconveniences 
than  those  which  are  the  natural  consequences  of 
the  action  itself,  is  a  political  dogma,  which  should 
be  defended  by  the  laws,  inculcated  by  the  magis- 
trates, and  believed  by  the  people  ;  a  sacred  dog- 
ma, without  which  there  can  be  no  lawful  societ}^, 


38  AN  ESSAY  ON 

a  just  recompense  for  our  sacrifice  of  that  univer* 
sal  liberty  of  action  common  to  all  sensible  beings, 
and  only  limited  by  our  natural  powers.  By  this 
principle  our  minds  become  free,  active,  and  vi- 
gorous ;  by  this  alone  we  are  inspired  with  that 
virtue  which  knows  no  fear,  so  different  from  that 
pliant  prudence,  worthy  of  those  only  who  can 
bear  a  precarious  existence. 

Attempts,  therefore,  against  the  life  and  liberty 
of  a  citizen  are  crimes  of  the  highest  nature.  Un- 
der this  head  we  comprehend  not  only  assassina- 
tions and  robberies  committed  by  the  populace, 
but  by  grandees  and  magistrates,  whose  example 
acts  with  more  force,  and  at  a  greater  distance 
destroying  the  ideas  of  justice  and  duty  among 
the  subjects,  and  subsituting  that  of  the  right  of  the 
strongest,  equally  dangerous  to  those  who  exercise 
it  and  to  those  who  suffen 


CRIMES  AND  PUNISHMENTS.  39 


CHAP.  IX. 

Of  Honour* 

THERE  is  a  remarkable  difference  between  the 
civil  laws,  those  jealous  guardians  of  lile  and  pro- 
perty, and  the  laws  of  what  is  called  honour,  which 
particularly  respects  the  opinion  of  others.     Ho- 
nour is  a  term  which  has  been  the  foundation  of 
many  long  and  brilliant  reasonings,  without  annex- 
ing to  it  any  precise  or  fixed  idea.     How  mise- 
rable is  the  condition  of  the  human  mind,  to  which 
the  most  distant  and  least  essential  matters,  the 
revolutions  of  the  heavenly  bodies,  are  more  dis-"^ 
tinctly  known  than  the  most  interesting  truths  of 
morality,  which  are  always  confused  and  fluctu- 
ating, as  they  happen  to  be  driven  by  the  gales  of 
passion,  or  received  and  transmitted  by  ignorance ! 
But  this  will  cease  to  appear  strange,  if  it  be  con- 
sidered, that  as  objects,  when  too  near  the  eye  ap- 
pear confused,  so  the  too  great  vicinity  of  the 
ideas  of  morality  is  the  reason  why  the  simple  ideas 
of  which  they  are  composed  are  easily  confound- 
ed, but  which  must  be  separated  before  we  can 
investigate  the  phenomina  of  human  sensibility; 
and  the  intelligent  observer  of  human  nature  will 
cease  to  be  surprised,  that  so  many  ties,  and  such 


4a  AN  ESSAY  ON 

an  apparatus  of  morality,  are  necessary  to  the  se- 
curity and  happiness  of  mankind. 

Honour,  then,  is  one  of  those  complex  ideas 
which  a  e  :n  aggieg<re  not  only  of  bimple  ontSj 
but  of  others  so  complicated,  that,  in  their  various 
modes  of  affecting  the  human  mind,  they  some- 
times  admit  and  sometimes  exclude  part  of  the  ele- 
mtfnts  of  which  they  are  composed,  retaining  only 
some  few  of  the  most  common,  as  many  algebraic 
(juantities  admit  one  common  divisor.  To  find 
this  common  divisor  of  the  different  ideas  attached 
to  the  word  honour,  it  will  be  necessary  to  go  back 
to  the  original  formation  of  society. 

The  first  laws  and  the  first  magistrates  owed 
their  existence  to  the  necessity  of  preventing  the 
disorders  which  the  natural  despotism  of  indivi- 
duals  would  unavoidably  produce.  This  was  the 
object  of  the  establishment  of  society,  and  was, 
either  in  reality  or  in  appearance,  the  principal 
design  of  all  codes  of  laws,  even  the  most  perni- 
cious. But  the  more  intimate  connexions  of  men, 
and  the  progress  of  their  knowledge,  gave  rise  to 
an  infinite  number  of  necessities  and  mutual  acts 
of  friendship  between  the  members  of  society. 
These  necessities  were  not  foreseen  by  the  laws, . 
^nd  could  not  be  satisfied  by  the  actual  power  of 


CRIMES  AND  PUNISHMENTS.  ^t 

©ach  individual.  At  this  epocha  began  to  be  esta- 
blished the  despotism  of  opinion,  as  being  the  only 
mv  ans  of  obtaining  those  benefits  which  the  law 
Gould  not  procure,  and  of  removing  those  evils 
against  which  the  laws  were  no  security.  It  is 
opinion,  that  tormentor  of  the  wise  and  the  igno- 
rant, that  has  exalted  the  appearance  of  virtue 
above  virtue  itself.  Hence  the  esteem  of  men 
becomes  not  only  useful  but  necessary  to  every 
one,  to  prevent  his  sinking  below  the  common  le- 
vel. The  aml)itious  man  grasps  at  it,  as  being 
necessary  to  his  designs  ;  the  vain  man  sues  for 
it,  as  a  testimony  of  his  merit ;  the  honest  man 
demands  it,  as  his  due ;  and  most  men  consider 
it  as  necessary  to  their  existence^ 

Honour,  being  produced  after  the  formation  of 
society,  could  not  be  a  part  of  the  common  de- 
posite,  and  therefore,  whilst  we  act  under  its  in- 
fluence, we  return,  for  that  instant,  to  a  state  of 
nature,  and  withdraw  ourselves  from  the  laws, 
which,  in  this  case,  are  insufficient  for  our  pro- 
tection. 

Hence  it  follows,  that,  in  extreme  political  li- 
berty, and  in  absolute  despotism,  all  ideas  of  ho- 
nour disappear,  or  are  confounded  with  others. 
In  the  first  case,  reputation  becomes  useless  from 

F 


42  AN  ESSAY  ON 

the  despotism  of  the  laws  ;  and  in  the  second,  the 
despotism  of  one  man,  annullingail  civil  existence- 
reduces  the  rest  to  a  precarious  and  temporary- 
personality.  Honour,  then,  is  one  of  the .  fun- 
damental principles  of  those  monarchies  which  are 
a  limited  despotism  ;  and  in  these,  like  revolutions 
in  despotic  states^  it  is  a  momentary  return  to 
state  of  nature  and  original  equality. 


CHAP.  X. 

Of  Budling, 

FROM  the  necessity  of  the  esteem  of  others 
have  arisen  single  combats,  and  they  have  been 
established  by  the  anarchy  of  the  laws.  They  are 
thought  to  have  been  unknown  to  the  ancients, 
perhaps  because  they  did  not  assemble  in  their  tem- 
ples, in  their  theatres,  or  with  their  friends,  sus- 
piciously armed  with  swords ;  and,  perhaps,  be- 
cause single  combats  were  a  common  spectacle, 
exhibited  to  the  people  by  gladiators,  who  were 
slaves,  and  whom  freemen  disdained  to  imitate. 

In  vain  have  the  laws  endeavoured  to  abolish 
this  custom  by  punishing  the  offenders  with  death* 
A  man  of  honour,  deprived  of  the  esteem  of  others, 


CRIMES  AND  PUNISHMENTS.  4S 

foresees  that  he  must  be  reduced  eidier  to  a  soli- 
tary existence,  insupportable  to  a  social  creature, 
or  become  the  object  of  perpetual  insult ;  consi- 
derations sufficient  to  overcome  the  fear  of  death. 

What  is  the  reason  that  duels  are  not  so  fre- 
quent among  the  common  people  as  amongst  the 
great  ?  not  only  because  they  do  not  wear  swords, 
but  because  to  men  of  that  class  reputation  is  of 
less  importance  than  it  is  to  those  of  a  higher 
rank,  who  commonly  regard  each  other  with  dis- 
trust and  jealousy. 

It  may  not  be  without  its  use  to  repeat  here 
what  has  been  mentioned  by  other  writers,  viz. 
that  the  best  method  of  preventing  this  crime  is  to 
punish  the  aggressor,  that  is,  the  person  who  gave 
occasion  to  the  duel,  and  to  acquit  him  who,  with- 
out any  fault  on  his  side,  is  obliged  to  defend  that 
which  is  not  sufficiently  secured  to  him  by  the 
laws. 


44  AN  ESSAY  OK 


CHAP;  XI. 


Of  crimes  which  disturb  the  Fullic  Tranquillity, 

ANOTHER  class  of  crimes  are  those  which 
disturb  the  public  tranquillity  and  the  quiet  of  the 
citizens ;  such  as  tumults  and  riots  in  the  public 
streets,  which  are  intended  for  commerce  and  the 
passage  of  the  inhabitants ;  the  discourses  of  fa- 
natics, which  rouse  the  passions  of  the  curious 
multitude,  and  gain  strength  from  the  number  of 
their  hearers,  who,  though  deaf  to  calm  and  solid 
reasoning,  are  always  affected  by  obscure  and 
mysterious  enthusiasm, 

.  The  illumination  of  the  streets  during  the  night 
at  the  public  expense,  guards  stationed  in  different 
quarters  of  the  city,  the  plain  and  moral  discourses 
of  religion  reserved  for  the  silence  and  tranquillity 
of  churches,  and  protected  by  authority,  and  ha- 
rangues in  support  of  the  interest  of  the  public, 
delivered  only  at  the  general  meetings  of  the  na- 
tion, in  parliament,  or  where  the  sovereign  resides, 
are  all  means  to  prevent  the  dangerous  effects  of 
the  misguided  passions  of   the  people.     These 


tRIIHES  AND  ?UNISH1VIEN^.  ^ 

should  be  the  principal  objects  ofthe  vigilance  of 
a  magistrate,  and  whidi  the  French  call  police; 
but  if  this  magistrate  should  act  in  an  arbitrary 
manner,  antl  not  in  conformity  to  the  code  of  laws, 
which  vjugKt  to  be  in  the  hands  of  eve  ry  member 
of  the  community,  he  opens  a  door  to  tyranny, 
which  always  surrounds  the  confine^  of  political 
liberty, 

I  do  not  know  of  any  exception  to  this  general 
axiom^  that  Every  member  of  society  should  know 
when  he  is  criminal  and xv hen  innocent.  If  censors, 
and,  in  general,  arbitrary  magistrates,  be  necessary 
in  any  government,  it  proceeds  from  some  fault  in 
the  constitution.  The  uncertainty  of  crimes  hath 
-sacrificed  more  victims  to  secret  tyranny  than  have 
€ver  suffered  by  public  and  solemn  cruelty. 

What  are,  in  general,  the  proper  punishments 
for  crimes  ?  Is  the  punishment  of  death  really  use- 
fid^  or  necessary  fo^  the  safety  or  good  order  of 
society  ?  Are  tortures  and  torments  consistent  with 
justice^  or  do  they  answer  the  end  proposed  by  the 
laws  ?  Which  is  the  best  method  of  preventing 
crimes?  Are  the  same  punishments  equally  useful 
at  all  times  ?  What  influence  have  they  on  man- 
ners ?  These  problems  should  be  solved  with  that 
geometriculp  rec^ign,  whieh  the  nii'si  of  sophistry, 


46  .  AN  ESSAY  ON 

the  seduction  of  eloruence;,  and  the  timidity  of 
doubt,  are  unable  to  resist. 

If  I  have  no  other  merit  than  that  of  having  first 
presented  to  my  country,  with  a  ,^xccicer  degree  of 
evidence,  what  oth^'  nations  have  written  and  are 
beginning  to  practice,  1  shall  account  myself  for- 
tunate; but  if,  by  supporting  the  rights  of  man- 
kind and  of  invincible  truth,  I  shall  contribute  to 
save  from  the  agonies  of  death  one  unfortunate 
victim  of  tyranny,  or  of  ignorance,  equally  fatal, 
his  blessing  and  tears  of  transport  will  be  a  suffi- 
cient consolation  to  me  for  the  contempt  of  all 
mankind. 


CRIMES  AND  PUNISHMENTS.  47 


CHAP.  XII. 

Of  the  Intent  of  Punishments. 

FROM  the  foregoing  considerations  it  is  evi- 
dent that  the  intent  of  punishments  is  not  to  tor- 
ment a  sensible  being,  nor  to  undo  a  criine  al- 
ready committed.  Is  it  possible  that  torments  and 
useless  cruelty,  the  instrument  of  furious  fanati- 
cism or  the  impotency  of  tyrant£>.  can  be  authorised 
by  a  political  boc'y,  which,  so  far  from  being  in- 
fluenced by  passion,  should  be  the  cool  moderator 
of  the  passions  of  individuals  ?  Can  the  groans  of 
a  tortured  wretch  recal  the  time  pasi,  or  reverse 
the  crime  he  has  committed  ? 

The  end  of  punishment,  therefore,  is  no  other 
than  to  prevent  the  criminal  from  doing  further 
injury  to  society,  and  to  prevent  others  from  com- 
mitting the  like  offence.  Such  punishments,  there- 
fore, and  such  a  mode  of  inflicting  them,  ought 
to  be  chosen,  as  will  make  the  strongest  and  most 
lasting  impressions  on  the  minds  of  others,  with 
the  least  torment  to  the  body  of  the  criminal.   . 


AN  ESSAY  OJf 


CHAP.  XIIL 

Of  the  Credihility  of  Witnesses, 

TO  determine  exactl}/  the  credibility  of  a  wit- 
ness, and  the  force  of  evidence,  is  an  important 
point  in  every  good  legislation.  Every  man  of 
common  sense,  that  is,  every  one  whose  ideas 
have  some  connection  with  each  other,  and  whose 
sensations  arc  conformable  to  those  of  other  men, 
may  be  a  witness ;  but  the  credibility  of  his  evi- 
dence will  be  in  proportion  as  he  is  interested  in 
declaring  or  concealing  the  truth.  Hence  it  ap- 
pears how  frivolous  is  the  reasoning  of  those  who 
reject  the  testimony  of  women,  on  account  of  their 
weakness ;  how  peurile  it  is  not  to  admit  the  evi- 
dence of  those  who  nre  under  sentence  of  death, 
because  they  are  dead  in  law ;  and  how  irrational 
to  exclude  persons  branded  with  infamy  ;  for  m 
all  these  cases  they  ought  to  be  credited,  when 
they  have  no  interest  in  giving  false  testimony, 
« 

The  credibility  of  a  witness,  then,  should  only 
diminish  in  proportion  to  the  hatred,  friendship, 
or  connections,  subsisting  between  him  and  the 
delinquent.     One   witness  is  not  sufficient  for^ 


CRIMES  AND  PUNISHMENTS  49 

whilst  the  accused  deiBes  what  the  other  affirms, 
truth  remains  suspended,  and  the  right  that  every 
one  has  to  be  believed  innocent  turns  the  balanci^ 
in  hi^  favour. 

The  credibility  of  a  witness  is  the  less  as  the 
atrociousness  of  the  crime  is  greater,  from  the 
improbability  of  its  having  been  committed ;  as 

in  cases  of  witchcraft,  and  acts  of  wanton  cruelty, 

'Ik' 
The  writers  on  penal  laws  have  adopted  a  contra-* 

ry  principle,  viz.  that  the  credibility  of  a  witness 

is  greater  as  the  crime  is  more  atrocious.     Behold 

their  inhuman  maxim,  dictated  by  the  most  cruel 

imbecility.     In   atrocissimis,    leviores   conjectural' 

siifficiunt.  ^  licit  judici  jura   transgredi.     Let  us 

translate  this  sentence,  that  mankind  may  see  one 

of  the  many  unreasonable  principles  to  which  they 

are   ignorantly    subject.     In    the   most   atrocious 

crimes^  the  slightest  conjectures  are  sufficients  and 

the  judge  is  allowed  to  exceed  the  limits  of  the  law.. 

The  absurd  practices  of  legislators  are  often  the 

effect  of  timidity,  which  is  a  principal  source  of 

the  contradictions  of  mankind.     The  legislators, 

(or  rather  lawyers,    whose  opinions  when  alive 

were  interested  and  venal,  but  which  after  their 

death  become  of  decisive  authority,  and  are  thp 

sovereign  arbiters  of  the  lives  and  fortunes  of 

men),  terrified  by  the  condemnation  of  som^  in.- 


Sa  AN  ESSAY  ON 

nocent  person,  have  burd^ed  the  law  with  pomp- 
ous and  useless  formalities,  the  scrupulous  ob- 
servance of  which  will  place  anarchical  iippunity 
on  the  throne  of  justice ;  at  other  times^,  perplex- 
ed by  atrocious  crimes  of  difficult  proof,  they 
imagined  themselves  under  a  necessity  of  super- 
seding  the  very  forn^alities  established  by  them- 
selves ;  and  thus,  at  one  time  with  despotic  impa- 
tience, and  at  another  with  feminine  timidity,  they 
transform  their  solemn  judgments  into  a  game  of 
hazard. 

But,  to  return  :  in  the  case  of  witchcraft,  it  is 
tnuch  more  probable  that  a  number  of  men  should 
be  deceived  than  that  any  person  should  exercise 
a  power  which  Gqd  hath  refused  to  every  created 
beingt  In  like  manner,  in  cases  of  wanton  cruel- 
ty, the  presumption  is  always  against  the  accuser ; 
for  no  man  is  cruel  without  some  interest,  with- 
out some  motive  of  fear  or  hate.  There  are  no 
spontaneous  or  superfluous  sentiments  in  the  heart 
of  man ;  they  are  all  the  result  of  impressions  on 
the  senses. 

The  credibility  of  a  witness  may  also  be  di- 
minished by  his  being  a  member  of  a  private 
society,  whose  customs  and  principles  of  conduct 
are  either  not  known  or  are  different  from  those 


CRIMES  AND  PUNISHMHTNTS.  51 

of  the  public.  Such  a  man  has  not  only  his  own 
passions,  but  those  of  the  society  of  which  he  is  a 
member. 

Finally,  the  credibility  of  a  witness  is  iiiill  when 
the  question  relates  to  the  words  of  a  criminal ; 
for  the  tone  of  voice,  the  gesture,  all  that  precedes, 
accompanies,  and  follows  the  different  ideas  which 
men  annex  to  the  same  words,  may  so  alter  and. 
modify  a  man's  discourse,  that  it  is  almost  impos- 
sible to  repeat  them  precisely  in  the  mannet  in 
which  they  were  spoken.  Besides,  violent  and 
uncommon  actions,  such  as  real  crimes,  leave  a 
trace  in  the  multitude  of  circumstances  that  attend 
them,  and  in  their  effects ;  but  words  remain  only 
in  the  memory  of  the  hearers,  who  are  commonly 
negligent  or  prejudiced.  It  is  infinitely  easier, 
then,  to  found  an  accusation  on  the  words  than 
on  the  actions  of  a  man  ;  for  in  these  the  number 
of  circumstances  urged  against  the  accused  afford 
him  variety  of  means  of  justificationo 


,4^  AN  ESSAY  ON 


CHAP.  XIV. 

f)f  EiMence  and  the  Proofs  of  a  Crime^  and  of  the 
Farm  of  Judgment. 

T He  following  general  theorem  is  of  great  use 
in  determinini5:  the  certainty  of  a  fact.  When  the 
proofs  of  a  crime  are  dependent  on  each  other, 
that  is,  when  the  evidence  of  each  witness,  taken 
separatel}^,  proves  nothing,  or  when  all  the  proofs 
are  dependent  Upon  one,  the  number  of  proofs 
iieither  increase  nor  diminish  the  probability  of  the 
fact ;  for  the  force  of  the  whole  is  no  greater  thail 
the  force  of  that  on  which  they  depend,  and  if  this 
fails,  they  all  fall  to  the  ground.  When  the  proofs 
are  independent  on  each  other,  tlie  probability  of 
the  fact  increases  in  proportion  to  the  number  of 
Joroofs  ;  for  the  falshood  of  the  one  does  not  dimi- 
nish the  veracity  of  another. 

It  rnay  seeih  extraordinary  that  I  Speafc  of  pro- 
bability with  regard  to  crimes,  which  to  deserve 
apunishraentj  must  be  certain.  But  this  paradox 
will  vanish  when  it  is  considered,  that,  strictly 
speaking,  moral  certainty  is  only  probability,  but 
which  is  called  a  certainty,  because  every  man  in 
his  senses  assents  to  it  from  an  habit  produced  by 
the  necessity  of  acting,  and  which  is  anterior  to  all 


CRIMES  AND  PUNISHMENTS.  53 

^speculation.  That  certainty  which  is  neciessary  to 
decide  that  the  accused  is  guilty  is  the  very  same 
which  determines  every  man  in  the  most  impor^ 
tant  transactions  of  his  life. 

The  proofs  of  a  crime  may  be  divided  into  twb 
classes,  perfect  and  imperfect.  1  call  those  per«^ 
feet  which  exclude  the  posbibility  of  innocence  ; 
imperfect^  those  which  do  not  exclude  this  possi- 
bility. Of  the  first,  one  only  is  sufficient  for  con- 
demnation ;  of  the  second,  as  many  are  required 
as  form  a  perfect  proof;  that  is  to  say^  that  though 
each  of  these ^  separately  taken,  does  not  exclude 
the  possibility  of  innocence,  it  is  nevertheless  ex^ 
eluded  by  their  union.  It  should  be  also  observ** 
ed,  that  the  imperfect  proofs,  of  which  the  accu^ 
sed,  if  innocent,  might  clear  himself,  and  does 
not  become  perfect. 

But  it  is  much  easier  to  feel  this  rtioral  certainty 
of  proofs  than  to  define  it  exactly.  For  this  rea* 
son,  1  think  it  an  excellent  law  which  establishes 
assistants  to  the  principal  judge,  and  those  chosen 
by  lot;  for  that  ignorance  which  judges  by  its 
feelings  is  less  subject  to  error  than  the  knowledge 
or  the  laws  which  judges  by  opinion*  Where  the 
laws  are  clear  and  precise,  the  office  of  the  judge 
is  merely  to  ascertain  the  fact*     If,  in  examining 


54  AN  ESSAY  ON 

the  proofs  of  a  crime,  acuteness  and  dexterity  be 
required^  if  clearness  and  precision  be  necessary 
in  summoning  up  the  result,  to  judge  of  the  re- 
suit  itself  nothing  is  wanting  but  plain  and  ordina- 
ry good  senscj  a  less  fallacious  guide  than  the 
knowledge,  of  a  judge,  accustomed  to  find  guilty^ 
and  to  reduce  all  things  to  an  artificial  system  bor- 
rowed from  his  studies.  Happy  the  nation  where 
the  knowledge  of  the  law  is  not  a  science  ! 

It  is  an  admirable  law  which  ordains  that  every 
man  shall  be  tried  by  his  peers ;  for,  when  lifcj 
liberty  and  fortune,  are  in  question,  the  senti- 
ments which  a  difference  of  rank  and  fortune  in- 
spires should  be  silent;  that  superiority  with  which 
the  fortunate  look  upon  the  unfortunate,  and  that 
envy  with  which  the  inferior  regard  their  supe- 
riors, should  have  no  influence.  But  when  the 
crime  is  an  offence  against  a  fellow- subject,  one 
half  of  the  judges  should  be  peers  to  the  accused,^ 
and  the  other  peers  to  the  person  offended  :  so  that 
all  private  interest,  which,  in  spite  of  ourselves, 
modifies  the  appearance  of  objects,  even  in  the 
eyes  of  the  most  equitable,  is  counteracted,  and 
nothing  remains  to  turn  aside  the  direction  of  truth 
and  the  laws.  It  is  also  just  that  the  accused 
should  have  the  liberty  of  excluding  a  certain  num- 
ber of  his  judges;  where  this  liberty  is  enjoyed 


GRIMES  AND  PUNISHMENTS.  55 

for  a  long  time,  without  any  instance  to  the  con- 
trary, the  criminal  seems  to  condemn  himself. 

All  trials  should  be  public,  that  opinion,  which 
is  the  best,  or  perhaps  the  only  cement  of  society, 
may  curb  the  authority  of  the  powerful,  and  the 
passions  of  the  judge,  and  that  the  people  may 
say,  '  We  are  protected  by  the  laws ;  we  are  not 
slaves:'  a  sentiment  which  inspires  courage,  ancj 
which  is  the  best  tribute  to  a  sovereign  who  knows 
his  real  interest.  I  shall  not  enter  into  particulars* 
There  may  be  some  persons  who  expect  that  I 
should  say  all  that  can  be  said  upon  this  subject  j 
^o  such  what  1  have  already  written  must  be  unin^ 
telligible. 


■  m    ■  AN  ESSAY  ON 


CHAP.  XY 


Qf  secret  ^Recusations. 

SECRET  accusations  are  a  manifest  abuse,  but 
consecrated  by  custom  in  many  nations,  where,  from 
the  weakness  of  the  government,  they  are  neces- 
sary. This  custom  makes  men  false  and  treacher. 
ous.  Whoever  suspects  another  to  be  an  inform- 
er, beholds  in  him  an  enemy  ;  and  from  thence 
mankind  are  accustomed  to  disguise  their  real  sen- 
timents ;  and,  from  the  habit  of  concealing  them 
from  others,  they  at  last  even  hide  them  from 
themselves.  Unhappy  are  those  who  have  arrived 
^tthis  point!  without  any  certain  and  fixed  prin« 
ciples  to  guide  them,  they  fluctuate  in  tlie  vast  se^ 
of  opinion,  and  are  busied  only  in  escaping  the 
xnonsters  which  surround  them  :  to  those  the  pre= 
sent  is  always  embittered  by  the  uncertainty  of  the 
future  ;  deprived  of  the  pleasures  of  tranquillity 
and  security,  some  fleeting  n^oments  of  happiness, 
scattered  thinly  through  their  wretched  Uves,  con- 
sole them  for  the  misery  of  existing.  Shall  we^ 
fimongst  such  men,  find  intrepid  soldiers,  to  defend 
their  king  and  country  ?  Amongst  such  men  shall 
we  find  incorruptible  magistrates,  who,  with  the 
spirit  of  freedom  and  patriotic  eloquence,  will  sup- 


GRIMES  AND  PUNISHMENTS.  57 

port  and  explain  the  true  interest  of  their  sove- 
reign; who,  with  the  tributes,  offer  up  at  the  throne 
the  love  and  blessing  of  the  people,  and  thus  be. 
stow  on  the  palaces  of  the  great  and  the  humble 
cottage  peace  and  security,  and  to  the  industrious 
a  prospect  of  bettering  their  lot  that  useful  fer- 
ment ^iid  vital  principle  of  states? 

Who  can  defend  himself  from  calumny.,  armed 
with  that  impenetrable  shield  of  tyranny,  secrecy? 
What  a  miserable  government  must  that  be  where 
the  sovereign  suspects  an  enemy  in  every  subject^ 
and*,  to  secure  the  tranquillity  of  the  public,  is 
obliged  to  sacrifice  the  repose  of  every  individuaL 

By  what  argument  is  it  pretended  that  secret 
accusations  may  be  justified?  The  public  safely, 
say  they,  and  the  security  and  maintenance  of  the 
established  form  of  government.  But  what  a 
strange  constitution  is  that  where  the  government^ 
which  hath  in  its  favour  not  only  power,  but  opi- 
nion, still  more  efficacious,  yet  fears  its  own  sub* 
jects?  The  indemnity  of  the  informer;  do  not  the 
laws  defend  him  sufficiently  ?  and  are  there  sub- 
jects more  powerful  than  the  laws?  The  necessity  of 
protecting  the  informer  from  infamy  ;  then  secret 
calumny  is  authorised,  and 'punished  only  when 
public.     The  nature  of  the  crime  ;  if  actions,  indif- 

H 


5S  '    '        AN  ESSAY  ON 

ferent  in  themselves,  or  even  useful  to  the  public, 
vv^ere  called  crimes,  both  the  accusation  and  the 
trial  could  never  be  too  secret.  But  can  there  be 
any  crime  committed  against  the  public  which 
ought  not  to  be  publicly  punished?  I  respect  all 
governments  ;  and  I  speak  not  of  any  one  in  par- 
ticular. Such  may  sometimes  be  the  nature  of 
circumstances,  that,  when  abuses  are  inherent  in 
the  constitution,  it  may  be  imagined,  that  to  rectify 
tbem  would  be  to  destroy  the  constitution  itself. 
But,  were  I  to  dictate  new  laws  in  a  remote  cor- 
ner of  the  universe,  the  good  of  posterity,  ever 
present  to  my  mind^  would  hold  back  my  trembling 
hand,  and  prevent  me  from  authorising  secret  ac- 
cusations. 

Public  accusations,  says  Montesqu ieu ,  are  more 
conformable  to  the  nature  of  a  republic,  where 
zeal  for  the  public  good  is  the  principal  passion  of 
a  citizen^  than  of  a  monarchy,  m  which,  as  this 
sentiment  is  very  feeble,  from  the  nature  of  the 
government,  the  best  establishment  is  that  of  C6>;?2- 
missioners,  who,  in  the  name  of  the  public,  accuse 
the  infractors  of  the  laws.  But  in  all  governments, 
as  well  in  a  republic  as  in  a  monarchy,  the  punish- 
ment due  to  the  crime  of  which  one  accuses  ano- 
ther ought  to  be  inflicted  on  the  informer. 


GRIMES  AND  PUNlSHxM^lNTS.  59 


CHAP.  XVI. 

Of  Torture. 

THE  torture  of  a  criminal  during  tlie  course  of 
his  trial  is  a  cruelty  consecrated  by  custom  in  most 
nations.  It  is  used  with  an  intent  either  to  make 
him  confess  his  crime,  or  to  explain  some  contra- 
dictions into  which  he  had  been  led  during  his  ex- 
amination,  or  discover  his  accomplices,  or  fomeome 
kind  of  metaphysical  and  incomprehensible  purga- 
tion of  infamy,  or,  finally,  in  order  to  discover 
other  crimes  of  which  he  is  not  accused,  but  of 
which  he  may  be  guilty. 

No  man  can  be  judged  a  criminal  until  he  be 
found  guilty  ;  nor  can  society  take  from  him  the 
public  protection  until  it  have  been  proved  that 
he  has  violated  the  conditions  on  which  it  was 
granted.  What  right,  then,  but  that  of  power, 
can  authorise  the  punishment  of  a  citizen  so  long 
as  there  remains  any  doubt  of  his  guilt  ?  This  di^' 
lemma  is  frequent.  Either  he  is  guilty,  or  not 
guilty.  If  guilty,  he  should  only  suffer  the  punish^ 
ment  ordained  by  the  laws,  and  torture  becomes 
useless,  as  his  confession  is  unnecessary.     Jf  he 


6a  AN  ESSAY  ON 

be  not  guilty,  you  torture  the  innocent ;  for,  iit 
the  eye  of  the  law,  every  man  is  innocent  whose 
crime  has  not  been  proved.  Besides,  it  is  con- 
founding all  relations  to  expect  that  a  man  should 
be  both  the  accuser  and  accused ;  and  that  pain 
should  be  the  test  of  truth,  as  if  truth  resided  in 
the  muscles  and  fibres  of  a  wretch  in  torture.  By 
this  method  the  robust  will  escape-,  and  the  feeble 
be  condemned.  These  ^re  the  incouveniencies  of 
this  pretended  test  pf  truth,  worthy  only  of  a  can- 
nibal, and  which  the  Ronians,  in  many  respects 
barba^spus,  and  whose  savage  virtue  has  been  too 
much  admired,  reserved  for  the  slaves  alone. 

What  is  the  political  intention  of  punishments? 
To  terrify  and  be  an  example  to  others.  Is  this 
intention  answered  by  thub  privately  torturing  the 
guilty  and  the  innocent  ?  It  is  doubtless  of  impor- 
tance that  no  crime  should  remain  unpunished  ; 
but  it  is  useless  to  make  a  public  exarpple  of  the 
author  of  a  crime  hid  in  darkness.  A  crime  al- 
ready committed,  and  for  which  there  can  be  no 
remedy,  can  only  be  punished  by  a  political  society 
with  an  intention  that  no  hopes  of  impunity  should 
induce  others  to  commit  the  same.  If  it  be  true, 
that  the  number  of  those  who  from  fear  or  virtue 
respect  the  laws  is  greater  than  of  those  by  whom 
they  are  violated,  the  risk  of  torturing  an  innocent 


CRIMES  AXD  PUNTSHMENTS.  ^. 

person  is  greater,  as  there  is  a  greater  probability 
that,  ceteris  paribus y  an  individual  hath  observed, 
than  that  he  hath  infringed  the  laws. 

There  is  another  ridiculous  motive  for  torture, 
namely,  to  purge  a  man  from  infamy.  Ought  such 
an  abuse  to  be  tolerated  in  the  eighteenth  century  ? 
Can  pain,  which  is  a  sensation,  have  any  connec- 
tion with  a  moral  sentiment,  a  matter  of  opinion  ? 
Perhaps  the  rack  may  be  considered  as  the  refi- 
ner's furnace. 

It  is  not  difficult  to  trace  this  senseless  law  to 
its  origin ;  for  an  absurdity,  adopted  by  a  whole 
nation,  must  have  some  affinity  with  other  ideas 
established  and  respected  by  the  same  nation. 
This  custom  seems  to  be  the  offspring  of  religion, 
by  which  mankind,  in  all  nations  and  in  all.  ages, 
are  so  generally  influenced.  We  are  taught  by 
our  infallible  church,  that  those  stains  of  sin  con- 
tracted through  human  frailty,  and  which  have 
not  deserved  the  eternal  anger  of  the  Almighty, 
arc  to  be  purged  away  in  another  life  by  an  in- 
comprehensible fire.  Now  infamy  is  a  stain,  and 
if  the  punishments  and  fire  of  purgatory  can  take 
away  all  spiritual  stains,  why  should  not  the  pain 
of  torture  take  away  those  of  a  civil  nature  ?  I 
imagine,  that  the  confession  of  a  criminal,  which 


6^.  AN  ESSAY  ON 

in  some  tribunals  is  required  as  being  essential  to 
his  condemnation,  has  a  similar  origin,  and  has 
been  taken  from  the  mysterious  tribunal  of  peni- 
tence, were  the  confession  of  sins  is  a  necessary- 
part  of  the  sacrament.  Thus  have  men  abused 
the  unerring  light  of  revelation ;  and,  in  the  times 
of  tractable  ignorance,  having  no  other,  they  na- 
turally had  recourse  to  it  on  every  occasion,  making 
the  most  remote  and  absurd  applications.  More- 
over, infamy  is  a  sentiment  regulated  neither  by 
the  laws  nor  by  reason,  but  entirely  by  opinion  ; 
but  torture  renders  the  victim  infamous,  and  there- 
fore cannot  take  infamy  away. 

Another  intention  of  torture  is  to  oblige  the 
supposed  criminal  to  reconcile  the  contradictions 
into  which  he  may  have  fallen  during  his  exami- 
nation ;  as  if  the  dread  of  punishment,  the  uncer- 
tainty of  his  fate.,  the  solemnity  of  the  court,  the 
majesty  of  the  judge,  and  the  ignorance  of  the 
accused,  were  not  abundantly  sufficient  to  account 
for  contradictions^  which  are  so  common  to  men 
even  in  a  state  of  tranquillity,  and  which  must  ne- 
cessarily be  multiplied  by  the  perturbation  of  the 
mind  of  a  man  entirely  engaged  in  the  thoughts 
of  Saving  himself  from  imminent  danger. 

This  infamous  test  of  truth  is  a  remaining 


CRIMES  AJSTD  PUNISHMENTS.  e$ 

monument  of  that  ancient  and  savage  legislation, 
in  which  trials  by  fire,  by  boiling  water,  or  the 
uncertainty  of  combats,  were  csillGd  judgments  of 
God;  as  if  the  links  of  that  eternal  chain,  whose 
beginning  is  in  the  breast  of  the  first  cause  of  all 
things,  could  ever  be  disunited  by  the  institutions 
of  men.  >■  The  only  diiFerence  between  torture  and 
trials  by  fire  and  boiling  water  is,  that  the'event 
of  the  first  depends  on  the  will  of  the  accused, 
and  of  the  second  on  a  fact  entirely  physical  and 
external :  but  thfs  difference  is  apparent  only,  not 
real.  A  man  on  the  rack,  in  the  convulsions  of 
torture,  has  it  as  little  in  his  power  to  declare  the 
truth,  as,  in  former  times,  to  prevent  without 
fraud  the  effects  of  fire  or  boiling  water. 

Every  act  of  the  will  is  invariably  in  proportion 
to  the  force  of  the  impression  on  our  senses.  The 
impression  of  pain,  then,  may  increase  to  such  a 
degree  J  that,  occupying  the  mind  entirely,  it  will 
compel  the  sufferer  to  use  the  shortest  method  of 
freeing  himself  from  torment.  His  answer,  there- 
fore^ will  be  an  effect  as  necessary  as  that  of  fire 
or  boiling  water,  and  he  will  accuse  himself  of 
crimes  of  which  he  is  innocent :  so  that  the  very 
means  employed  to  distinguish  the  innocent  from 
the  guilty  will  most  effectually  destroy  all  differ- 
ence between  them. 


64  AN  ESSAY  ON 

It  would  be  superfluous  to  confirm  these  re- 
flections by  examples  of  innocent  persons  who> 
from  the  agony  of  torture,  have  confessed  them- 
selves guilty:  innumerable  instances  may  be  found 
in  all  nations,  and  in  every  age.  How  amazing 
that  mankind  have  always  neglected  to  draw  the 
natural  conclusion  !  Lives  there  a  man  who,  if  he 
has  carried  his  thoughts  ever  so  little  beyond  the 
necessities  of  life,  when  he  reflects  on  such  cruelty, 
is  not  tempted  to  fly  from  society,  and  return  to 
his  natural  state  of  independence  ? 

The  result  of  torture,  then,  is  a  matter  of  calcu- 
lation, and  depends  on  the  constitution,  which  dif- 
fers in  every  individual,  and  it  is  in  proportion  to 
his  strength  and  sensibility ;  so  that  to  discover 
truth  by  this  method,  is  a  problem  which  may  be 
better  solved  by  a  mathematician  than  by  a  judge, 
and  may  be  thus  stated  :  The  force  of  the  muscles 
and  the  sensibility  of  the  nerves  of  an  innocent  per- 
son being  given^  it  is  required  to  find  the  degree  of 
pain  necessary  to  make  him  confess  himself  guilty 
of  a  given  crime. 

The  examination  of  the  accused  is  intended  to 
find  out  the  truth  ;  but  if  this  be  discovered  with 
so  much  difliiculty  in  the  air,  gesture,  and  counte- 
nance of  a  man  at  ease,  how  can  it  appear  in  a 


CRIMES  AND  PUNISHIVIENTS.  6^ 

countenance  distorted  by  the  convulsions  of  tor- 
ture ?  Every  violent  action  destroys  those  small 
alterations  in  the  features  which  sometimes  dis- 
close the  sentiments  of  the  heart. 

These  truths  were  known  to  the  Roman  legis- 
lators, amongst  whom,  as  I  have  already  observed, 
slaves  only,  who  were  not  considered  as  citizens, 
were  tortured.     They  are  known  to  the  English 
a  nation  in  which  the  progress  of  science,  superi- 
ority in  commerce,  riches,  and  power,  its  natural 
consequences,  together  with  the  numerous  exam- 
ples of  virtue  and  courage,  leave  no  doubt  of  the 
excellence  of  its  laws.    They  have  been  acknow- 
ledged in  Sweden,  where  torture  has  been  abolish- 
ed.    They  are  known  to  one  of  the  wisest  mo- 
narchs  in  Europe,  who,  having  seated  philosophy 
on  the  throne  by  his  beneficent  legislation,  has 
made  his  subjects  free,  though  dependent  on  the 
laws;  the  only  freedom  that  reasonable  men  can 
desire  in  the  present  state  of  things.     In  short, 
torture  has  not  been  thought  necessary  in  the  laws 
of  armies,  composed  chiefly  of  the  dregs  of  man- 
kind, where  its  use  should  seem  most  necessary. 
Strange  phenomenon !  that  a  set  of  meii,  hardened 
by  slaughter,  and  familiar  with  blood,  should  teach 
humanity  to  the  sons  of  peace. 

It  appears  also  that  these  truths  were  known, 

1 


6^  AN  ESSAY  ON 

though  imperfectly,  even  to  those  by  whom  tor- 
ture has  been  most  frequently  practised ;  for  a 
confession  made  during  torture,  is  null,  if  it  be 
not  afterwards  confirmed  by  an  oath,  which  if 
the  criminal  refuses,  he  is  tortured  again.     Some 
civilians  and  some  nations  permit  this  infamous 
petitio  prmcipii  to  be  only  three  times  repeated, 
and  others  leave  it  to  the  discretion  of  the  judge  ; 
therefore,  of  two  men  equally  innocent,  or  equally 
guilty,  the  most  robust  and  resolute  will  be  acquit- 
ted, and  the  weakest  and  most  pusillanimous  will 
be  condemned,  in  consequence  of  the  following 
excellent  mode  of  reasoning.  /,  the  judge  ^  must  find 
some  one  guilty,     Thou^  who  art  a  strong  fellow^ 
hast  been  able  to  resist  the  fi:)rce  of  torment;  therefore 
I  acquit  thee.     Thou,  being  weaker ^  hast  yielded  to 
it ;  J  therefore  condemn  thee.  lam  sensible^  that  the 
confession  which  was  extorted  from  thee  has  no 
iveight  ;  but  if  thou  dost  not  confirm  by  oath  what 
thou  hast  already  confessed^  I  will  have  thee  tor- 
fhented  again. 

A  very  strange  but  necessary  consequence  of 
the  use  of  torture  is,  that  the  case  of  the  innocent 
is  worse  than  that  of  the  guilty.     With  regard  to  \ 
the  first,  either  he  confesses  the  crime  which  he  1 
has  not  committed,  and  is  condemned,  or  he  is 
acquitted,  and  has  suffered  a  punishment  he  did  not 


CRIMES  AND  I'UNISHMENTS.  ^ 

deserve.  On  the  contrary,  the  person  who  is  really 
guilty  has  the  most  favourable  side  of  the  question ; 
for,  if  he  supports  the  torture  with  firmness  and 
resolution,  he  is  acquitted,  and  has  gained,  having 
exchanged  a  greater  punishment  for  a  less. 

The  law  by  which  torture  is  authorised,  says, 
Mffi^  be  insensible  to  pain.  Nature  has  indeed  given 
you  an  irresistible  self-love^  and  an  unalienable  right 
of  self -preservation  ;  but  I  create  in  you  a  contrary 
sentiment,  an  heroical  hatred  of  yourselves.  I  com* 
mand  you  to  accuse  yourselves-^  and  to  declare  the 
truths  amidst  the  tearing  of  your  fiesh  and  the  dis^ 
location  of  your  bones. 

Torture  is  used  to  discover  whether  the  criminal 
be  guilty  of  other  crimes  besides  those  of  which 
he  is  accused,  which  is  equivalent  to  the  following 
reasoning.  Thou  art  guilty  of  one  crime,  therefore 
it  is  possible  that  thou  mayest  have  committed  a 
thousand  others ;  but  the  affair  being  doubtfid,  I 
must  try  it  by  my  criterion  of  truth.  The  laws 
9rder  thee  to  be  tormented  because  thou  art  guilty^ 
btcause  thou  mayest  be  guilty^  and  because  I  choose 
thou  shouldst  be  guilty. 

Torture  is  used  to  make  the  criminal  discover 
his  accomplices ;  but  if  it  has  been  demonstrated 


68  •  AN  ESSAY  ON 

that  it  is  not  at  a  proper  means  of  discovering  truth, 
how  can  it  serve  to  discover  the  accomplices^ 
which  is  one  of  the  truths  required  ?  Will  not  the 
man  who  accuses  himself  yet  more  readily  accuse 
others  ?  Besides,  is  it  just  to  torment  one  man 
for  the  crime  of  another?  May  not  the  accomplices 
be  found  out  by  the  examination  of  the  witnesses, 
or  of  the  criminal ;  from  the  evidence,  or  from 
the  nature  of  the  crime  itself;  in  short,  by  all  the 
means  that  have  been  used  to  prove  the  guilt  of 
the  prisoner?  The  accomplices  commonly  fly  when 
their  comrade  is  taken.  The  uncertainty  of  their 
fate  condemns  them  to  perpetual  exile,  and  frees 
society  from  the  danger  of  further  injury  ;  whilst 
the  punishment  of  the  criminal,  by  deterring 
others,  answers  the  purpose  for  which  it  was  or- 
dained. 


CRIMES  AND  PUNISHMENTS  69 


CHAP.  XVIL 

Of  'pecuniary  Punishments, 

THERE  was  a  time  when  all  punishments  were 
pecuniary.  The  crimes  of  the  subjects  were  the 
inheritance  of  the  prince.  An  injury  done  to  so- 
ciety was  a  favour  to  the  crown ;  and  the  sove- 
reign and  magistrates,  those  guardians  of  the  pub- 
lic security,  were  interested  in  the  violation  of  the 
laws.  Crimes  were  tried,  at  that  time,  in  a  court 
of  exchequer,  and  the  cause  became  a  civil  suit 
between  the  person  accused  and  the  crown.  The 
magistrate  then  had  other  powers  than  were  ne- 
cessary  for  the  public  welfare,  and  the  criminal 
suffered  other  punishments  than  the  necessity  of 
example  required.  The  judge  was  rather  a  col- 
lector for  the  crown,  an  agent  for  the  treasury, 
than  a  protector  and  minister  of  the  laws.  But 
according  to  this  system,  for  a  man  to  confess  him- 
self guilty  was  to  acknowledge  himself  a  debtor  to 
the  crown ;  which  was,  and  is  at  present  (the  ef- 
fects continuing  after  the  causes  have  ceased)  the 
intent  of  all  criminal  causes.  Thus,  the  criminal 
who  refuses  to  confess  his  crime,  though  convicted 
by  the  most  undoubted  proofs,  will  suffer  a  less 
punishment  than  if  he  had  confessed ;  and  he  will 


70  AN  ESSAY  ON 

not  be  put  to  the  torture  to  oblige  him  to  confess 
other  crimes  which  he  might  have  committed,  as 
he  has  not  confessed  the  principal.  But  the  con- 
fession being  once  obtained,  the  judge  becomes 
master  of  his  body,  and  torments  him  with  a  stu- 
died formality,  in  order  to  squeeze  out  of  him  all 
the  profit  possibl .  Confession,  then,  is  allowed 
to  be  a  convincing  proof,  especially  when  obtained 
by  the  force  of  torture ;  at  the  same  time  that  an 
extrajudicial  confession,  when  a  man  is  at  ease 
and  under  no  apprehension,  is  not  sufficient  for 
his  condemnation. 

All  inquiries  which  may  serve  to  clear  up  the 
fact,  but  which  may  weaken  the  pretensions  of 
the  crown,  are  excluded.  It  was  not  from  com- 
passion to  the  criminal,  or  from  considerations  of 
humanity,  that  torments  were  sometimes  spared, 
but  out  of  fear  of  losing  those  rights  which  at 
present  appear  chimerical  and  inconceivable.  The 
judge  becomes  an  enemy  to  the  accused,  to  a 
wretch  a  prey  to  the  horrors  of  a  dungeon,  to  tor- 
ture, to  death,  and  an  uncertain  futurity,  more 
terrible  than  all ;  he  inquires  not  into  the  truth 
of  the  fact,  but  the  nature  of  the  crime;  he  lays 
snares  to  make  him  convict  himself;  he  fears  lest 
he  should  not  succeed  in  finding  him  guilty,  and 
lest  that  infallibility  which  every  man  arrogates  to 


CRIMES  AND  PUNISHMENTS.  71 

himself  should  be  called  in  question.  It  is  in  the 
power  of  the  magistrate  to  determine  what  evi- 
dence is  sufficient  to  send  a  man  to  prison ;  that 
he  may  be  proved  innocent,  he  must  first  be  sup- 
posed guilty.  This  is  what  is  called  an  offensive 
prosecution ;  and  such  are  all  criminal  proceed- 
ings in  the  eighteenth  century,  in  all  parts  of  our 
polished  Europe.  The  true  prosecution, ybr  infor' 
matioTij  that  is,  an  impartial  inquiry  into  the  fact, 
that  which  reason  prescribes,  which  military  laws 
adopt,  and  which  Asiatic  despotism  allows  in  suits 
of  one  subject  against  another,  is  very  little  prac- 
tised in  any  courts  of  justice.  What  a  labyrinth 
of  absurdities  !  Absurdities  which  will  appear  in- 
creditable  to  happier  posterity.  The  philosopher 
only  will  be  able  to  read,  in  the  nature  of  man,  the 
possibility  of  there  ever  having  been  such  a  system. 


T2  ^AX  ESSAY  ON 


CHAr.  XYIII. 

0/  Oailis, 

THERE  is  a  palpable  contradiction  between 
the  laws  and  the  natural  sentiments  of  mankind  in 
the  case  oioathsy  which  are  administered  to  a  cri- 
minal to  make  him  speak  the  truth,  when  the  con- 
trary is  his  greatest  interest ;  as  if  a  man  could  think 
himself  obliged  to  contribute  to  his  own  destruc- 
tion, and  as  if,  when  interest  speaks,  religion  was 
not  generally  silent,  religion,  which  in  all  ages 
hath,  of  all  other  things,  been  most  commonly 
abused :  and  indeed,  upon  what  motive  should  it 
be  respected  by  the  wicked,  when  it  has  been  thus 
violated  by  those  who  were  esteemed  the  wisest 
of  men  ?  The  motives  which  religion  opposes  to 
the  fear  of  impending  evil  and  the  love  of  life  are 
too  weak,  as  they  are  too  distant,  to  make  any 
impression  on  the  senses.  The  affairs  of  the  other 
world  are  regulated  by  laws  entirely  different  from 
those  by  which  human  affairs  are  directed ;  why 
then  should  you  endeavour  to  compromise  matters 
between  them  ?  Why  should  a  man  be  reduced  to 
the  terrible  alternative,  either  of  offending  God, 
or  of  contributing  to  his  own  immediate  destruc- 


I 


CRIMES  AND  PUNISHVftiNTS.  72 

tioh  ?  The  laws  which  require  an  oath  in  such  a 
case  leave  him  only  the  choice  of  becoming  a  bad 
Christian  or  a  martyr.  For  this  reason,  oaths  be- 
come, by  degrees,  a  mere  formality,  and  all  sen- 
timents of  religion,  perhaps  the  only  motive  of 
honesty  in  the  greatest  part  of  mankind,  are  de- 
stroyed. Experience  proves  their  inutility  :  I  ap- 
peal to  every  judge,  whether  he  has  ever  known 
that  an  oath  alone  has  brought  truth  from  the  lips 
of  a  criminal ;  and  reason  tells  us,  it  must  be  so ; 
for  all  laws  are  useless,  and  in  consequence  de- 
structive, which  contradict  the  natural  feelings  of 
mankind.  Such  laws  are  like  a  dike,  opposed  di- 
rectly to  the  course  of  a  torrent ;  it  is  either  im- 
mediately overwhelmed,  or,  by  a  whirlpool  for- 
med by  itself,  it  is  gradually  undermined  and  de- 
stroved. 


•■4i 


K 


74  AN  ESSAY  OJf 


CHAP.  XIX. 

Of  the  Mvantage  nf  immediate  Punishment. 

THE  more  immediacely  after  the  commission 
of  a  crime  a  punishment  is  inflicted,  the  more  just 
and  useful  it  will  be.  It  will  be  more  just,  because 
it  spares  the  criminal  the  cruel  and  superfluous 
torment  of  uncertainty,  which  increases  in  propor- 
tion to  the  strength  of  his  imagination  and  the 
sense  of  his  weakness ;  and  because  the  privation 
of  fiberty,  being  a  punishment,  ought  to  be  inflict- 
ed before  condemnation  but  for  as  short  a  time 
as  possible.  Imprisonment,  I  say,  being  only  the 
means  of  securing  the  person  of  the  accused  until 
he  be  tried,  condemned,  or  acquitted,  ought  not 
only  to  be  of  as  short  duration,  but  attended  with 
as  little  severity  as  possible.  The  time  should  be 
determined  by  the  necessary  preparation  for  the 
trial,  and  the  right  of  priority  in  the  oldest  pri- 
soners. The  confinement  ought  not  to  be  closer 
than  is  requisite  to  prevent  his  flight,  or  his  con- 
cealing the  proofs  of  the  crime ;  and  the  trial 
should  be  conducted  with  all  possible  expedition. 
Can  there  be  a  more  cruel  contrast  than  that  be- 
tween the  indolence  of  a  judge  and  the  painful 


CRIMES  AND  PUNISHMENTS.  7j 

anxiety  of  the  accused ;  the  comforts  and  plea- 
sures of  an  insensible  magistrate,  and  the  filth  and 
misery  of  the  prisoner?  In  general,  as  I  have  be- 
fore observed,  The  degree  of  the  punishments,  and 
the  consequences  of  a  crime ^  ought  to  he  so  contri- 
ved as  to  have  the  greatest  possible  effect  on  others^ 
with  the  least  possible  pain  to  the  delinquent.  If 
there  be  any  society  in  which  this  is  not  a  funda- 
mental principle,  it  is  an  unlawful  society ;  for 
mankind,  by  their  union,  originally  intended  to 
subject  themselves  to  the  least  evils  possible. 

An  immediate  punishment  is  more  useful ;  be- 
cause the  smaller  the  interval  of  time  between 
the  punishment  and  the  crime,  the  stronger  and 
more  lasting  will  be  the  association  of  the  two 
ideas  of  crime  and  punishment :  so  tha  they  may 
be  considered,  one  as  the  cause,  and  the  other  as 
the  unavoidable  and  necessary  effect.  It  is  de- 
monstrated, that  the  association  of  ideas  is  the 
cement  which  unites  the  fabric  of  the  human  in- 
tellect, without  which  pleasure  and  pain  would 
be  simple  and  ineffectual  sensations.  The  vulgar, 
that  is,  all  men  who  have  no  general  ideas  or  uni- 
versal principles,  act  in  consequence  of  the  most 
immediate  and  familar  associations  ;  but  the 
more  remote  and  complex  only  present  them- 
selves to  the  minds  of  those  who  are  passionately 


76  AN  ESSAY  ON 

attached  to  a  single  object,  or  to  those  of  greater 
understanding,  who  have  acquired  an  habit  of 
rapidly  comparing  together  a  number  of  objects, 
and  of  forming  a  conclusion  ;  and  the  result,  that 
is,  the  action  in  consequence,  by  these  means  be-^ 
comes  less  dangerous  and  uncertain. 

It  is,  then,  of  the  greatest  importance  that  the 
punishment  should  succeed  the  crime  as  imme- 
diately as  possible,  if  we  intend  that,  in  the  rude 
minds  of  the  multitude,  the  seducing  picture  of 
the  advantage  arising  from  the  crime  should  in- 
stantly awake  the  attendant  idea  of  punishment. 
Delaying  the  punishment  serves  only  to  separate 
these  two  ideas,  and  thus  affects  the  minds  of  the 
spectators  rather  as  being  a  terrible  sight  than  the 
necessary  consequence  of  a  crime,  the  horror  of 
which  should  contribute  to  heighten  the  idea  of 
the  punishment. 

There  is  another  excellent  method  of  strength- 
ening this  important  connection  between  the  ideas 
of  crime  and  punishment ;  that  is,  to  make  the 
punishment  as  analogous  as  possible  to  the  nature 
of  the  crime,  in  order  that  the  punishment  may 
lead  the  mind  to  consider  the  crime  in  a  different 
point  of  view  from  that  in  which  it  was  placed  by 
the  flattering  idea  of  promised  advantages. 


CRIMES  AND  PUNISHMENTS.  77 

Crimes  of  less  importance  are  commonly  pu- 
nished either  in  the  obscurity  of  a  prison,  or  the 
criminal  is  transported^  to  give  by  his  slavery  an 
example  to  societies  which  he  never  offended ;  an 
example  absolutely  useless,  because  distant  from 
the  place  vi^here  the  crime  was  committed.  Men 
do  not,  in  general,  commit  great  crimes  delibe- 
rately, but  rather  in  a  sudden  gust  of  passion ; 
and  they  commonly  look  on  the  punishment  due 
to  a  great  crime  as  remote  and  improbable.  The 
public  punishment,  therefore,  of  small  crimes  will 
make  a  greater  impression,  and,  by  deterring  men 
from  the  smaller,  will  effectually  prevent  the 
greater. 


.71  AN  ESSAY  ON 


CHAP.  XX. 

Of  Acts  of  violence. 

SOME  crimes  relate  to  person^  others  to  pro- 
peril/.  The  first  ought  to  be  punished  corporally. 
The  great  and  rich  should  by  no  means  have  it 
in  their  power  to  set  a  price  on  the  security  of 
the  weak  and  indigent ;  for  then  riches,  which, 
undipr  the  protection  of  the  laws,  are  the  reward 
of  industry,  would  become  the  aliment  of  tyranny. 
Liberty  is  at  an  end   whenever  the  laws  permit 
that,  in  certain  cases,  a  man  may  cease  to  be  a  per- 
son^  and  become  a  thing.  Then  will  the  powerful 
employ  their  address  to  select  from  the  various 
combinations  of  civil  society  all   that  is  in  their 
own  favour.    This  is  that  magic  art  which  trans- 
forms subjects  into  beasts  of  burden,  and  which, 
in  the  hands  of  the  strong,  is  the  chain  that  binds 
the  weak  and  incautious.  Thus  it  is  that  in  some 
governments,  where  there  is  all  the  appearance  of 
Liberty,  tyranny  lies  concealed,  and  insinuates  it- 
self into  some  neglected  corner  of  the  constitution, 
where  it  gathers  strength  insensibly.     Mankind 
generally  oppose,  with  resolution,  the  assaults  of 
barefaced  and  open  tyranny,  but  disregard  the 


GRIMES  AND  PUNISHMENTS.  79 

little  insect  that  gnaws    through  the   dike,  and 
opens  a  sure  though  secret  passage  to  inundation 


CHAP.  XXI. 


Of  the  Punishment  of  the  J^Tohles. 

WHAT  punishments  shall  be  ordained  for  the 
nobles,  whose  privileges  make  so  great  a  part  of 
the  laws  of  nations  ?  I  do  not  mean  to  inquire 
whether  the  hereditary  distinction  between  nobles 
and  commoners  be  useful  in  any  government,  or 
necessary  in  a  monarchy  ;  or  whether  it  be  true 
that  they  form  an  intermediate  power,  of  use  in 
moderating   the   excess  of  both  extremes ;    or 
whether  they  be  not  rather  slaves  to  to  their  own 
body,  and  to  others,  confining  within  a  very  small 
circle  the  natural  effects  and  hopes  of  industry, 
like  those  little  fruitful  spots  scattered  here  and 
there  in  the  sandy  deserts  of  Arabia ;  or  whether 
it  be  true  that  a  subordination  of  rank  and  condi- 
tion is  inevitable  or  useful  in  society ;  and,  if  so, 
whether  this  subordination  should  not  rather  sub- 
sist between  individuals  than  particular  bodies, 
whether  it  should  not  rather  circulate  through  the 
whole  body  politic  than  be  confined  to  one  part, 
and,  rather  than  be  perpetual,  should  it  not  be  in- 


m  AN  ESSAY  ON 

cessantly  produced  and  destroyed.  Be  these  as 
they  may,  I  assert  that  the  punishment  of  a  no- 
bleman should  in  no  wise  differ  from  that  of  the 
lowest  member  of  society. 

Every  lawful  distinction,  either  in  honours  or 
riehes,  supposes  previous  equality,  founded  on  the 
laws,  on  which  all  the  members  of  society  are 
considered  as  being  equally  dependent.  We  should 
suppose  that  men,  in  renouncing  their  natural  des- 
potism, said,  7he  wisest  and  most  industrious 
among  us  should  obtain  the  greatest  honours,  and 
his  dignity  shall  descend  to  his  posterity.  The 
fortunate  and  happy  may  hope  for  greater  honours, 
but  let  him  not  therefore  be  less  afraid  than  others 
of  violating  those  conditions  on  which  he  is  exalte 
ed.  It  is  true  indeed  that  no  such  degrees  were 
ever  made  in  a  general  diet  of  mankind,  but  they 
exist  in  the  invanaole  relations  of  things  ;  nor  do 
they  destroy  the  advantages  which  are  supposed 
to  be  produced  by  the  class  of  nobles,  but  prevent 
the  inconveniences ;  and  they  make  the  laws  res- 
pectable, by  destroying  all  hopes  of  impunity. 

It  may  be  objected,  that  the  same  punishment 
inflicted  on  a  nobleman  and  a  plebeian  becomes 
really  different  from  the  difference  of  their  educa- 
tion, and  from  the  infamy  it  reflects  on  an  illustri- 


GRIMES  AND  PUNISHMENTS.  81 

•usfl^mily:  but  I  answer,  that  punishments  are  to 
be  estimated,  not  by  the  sensibility  of  the  criminal, 
but  by  the  injury  done  to  society,  which  injury  is 
augmented  by  the  high  rank  of  die  offender.  The 
precise  e([uality  of  a  punishment  can  never  be 
more  than  external,  as  it  is  in  proportion  to  the  de- 
gree of  sensibility  which  differs  in  every  individual. 
The  infamy  of  an  innocent  family  may  be  easily 
obliterated  by  some  public  demonstration  of  fa- 
vour from  th'fe  sovereign,  and  forms  have  always 
more  influence  than  reason  on  the  gazing  multi- 
tude. 


CHAP.  XXII. 


Of  Rohhery. 

THE  punishment  of  robbery,  not  accompanied 
with  violence,  should  be  pecuniary.  He  who  en- 
deavours to  enrich  himself  with  the  property  of 
another  should  be  deprived  of  part  of  his  own. 
But  this  crime,  alas !  is  commonly  the  effect  of 
misery  and  despair ;  the  crime  of  that  unhappy 
part  of  mankind  to  whom  the  right  of  exclusive 
property,  a  terrible  and  perhaps  unnecessary 
right,  has  left  but  a  bare  existence.  Besides,  as  pe  • 
cuniary  punishments  may  increase  the  number  of 

L 


82  AN  ESSAY  ON 

robbers,  by  increasing  the  number  of  poor,  and 
may  deprive  an  innocent  family  of  subsistence,  the 
mosJ:  proper  punishment  will  be  that  kind  of  sla- 
very which  alone  can  be  called 'just;  that  is, 
which  makes  the  society,  for  a  timc^  absolute  mas- 
"  terof  the  person  and  labour  of  the  criminal,  in 
order  to  oblige  him  to  repair,  by  this  dependence, 
the  utijust  despotism  he  usurped  over  the  property 
of  anptlier,  and  his  violation  of  the  social  compact. 

When  robbery  is  attended  with  violence,  cor- 
poral punishment  should  bb  added  to  slavery. 
Many  writers  have  shewn  the  evident  disorder 

%vhich  must  arise  from  not  distinguishing  the  pun- 

■  I-  ■ 
ishment  due  to  robbery  with  violence^  and  that 

due  to  tfieft  or  robbery  committed  with  de^fteri- 
ty,  absurdly  making  a  sum  of  money  equivalent 
to  a  man's  life.  But  it  can  never  be  superfluous 
to  repeat,  again  and  again,  those  truths  of  which 
mankind  have  not  profited  ;  for  political  machines 
'  preserve  their  motion  much  longer  than  others, 
and  receive  a  new  impulse  widi  more  difficulty. 
These  crimes  are  in  their  nature  absolutely  dif- 
ferent, and  this  axiom  is  as  certain  in  politics  as 
in  mathematics,  that  between  qualities  of  differ- 
ent  natures  there  can  be  no  similitude. 


CRIMES  AND  PUNISHMENTS.  83 


CHAP.  XXIIL 

■*» 

Of  Tnfamtj  considered  as  a  Punishment. 

THOSE  injuries  which  affect  the  honour,  that 
is,  that  just  portion  of  esteem  which  every  citizen 
has  a  right  to  expect  from  others,  should  be  punish- 
ed with  infamy.  Infamy  is  a  mark  of  the  public 
disapprobation,  w^hich  deprives  the  object  of  all 
consideration  in  the  eyes  of  his  fellow- citizens, 
of  the  confidence  of  his  country,  and  of  that  fra- 
ternitv  which  exists  between  members  of  the  same 
society.  This  is  not  always  in  the  power  of  the 
laws.  It  is  necessary  that  the  infamy  inflicted  by 
the  laws  should  be  the  same  with  that  which  re- 
sults front  the  relations  of  things,  from  universal 
morality,  or  from  that  particular  system,  adopted 
by  the  natJbn  and  the  laws,  which  governs  the 
opinion  of  the  vulgar.  If,  on  the  contrary,  one 
be  different  from  the  other,  either  the  laws  will  no 
longer  be  respected,  or  the  received  notions  of 
morality  and  probity  will  vanish,  in  spite  of  the  " 
declamations  of  moralists,  which  are  always  too 
weak  to  resist  the  force  of  example.  Ifwe  de- 
clare those  actions  infamous  which  are  in  them- 
selves indifferent,  we  lessen  the  infamy  of  those 
which  are  really  inf;\mous. 


84  AN  ESSAY  ON 

The  punishment  of  infamy  should  not  be  too 
frequent,  for  the  power  of  opinion  grows  weaker 
by  repetition;  nor  should  it  be  inflicted  on  a  num- 
ber of  persons  at  the  same  time,  for  the  infamy  of 
many  resolves  itself  into  the  infamy  of  none. 

Painful  and  corporal  punishments  should  never 
be  applied  to  fanaticism  ;  for,  being  founded  on 
pride,  it  glories  in  persecution.  Infamy  and  ridi- 
cule only  should  be  employed  against  fanatics : 
if  \hfe  first,  their  pride  will  be  overbalanced  by  the 
pride  of  the  people;  and  we  may  judge  of  the 
power  of  dae  second,  if  we  consider  that  even 
truth  is  obliged  to  summon  all  her  force  when  at- 
tacked by  error  armed  with  ridicule.  Thus,  by 
opposing  one  passion  to  another,  and  opinion  to 
opinion,  a  wise  legislator  puts  an  end  to  the  ad- 
miration of  the  populace  occasioned  By  a  false 
printijile,  the  original  absurdity  of  which  is  veil- 
ed by  some  well  deduced  consequences. 

This  is  the  method  to  avoid  confounding  the 
immutable  relations  of  things,  or  opposing  nature, 
whose  actions,  not  being  limited  by  time,  but 
operating  incessantly,  overturn  and  destroy  all 
tliose  vain  regulations  which  contradict  her  laws. 
It  is  not  only  in  the  fine  arts  that  the  imitation  of 
nature  is  the   fundamental  principle;  it  is  the 


CRIMES  AND  PUNISHMENTfi.  85 

same  in  sound  policy,  which  is  no  other  than  the 
art  of  uniting  and  directing  to  the  same  end  the 
natural  and  immutable  sentiments  of  mankind. 


CHAP.  XXIV. 

Of  Idleness, 

A  WISE  government  will  not  suffer  in  the 
midst  of  labour  and  industry,  that  kind  of  politi- 
cal idleness  which  is  confounded  by  rigid  declaim- 
ers  with  the  leisure  attending  riches  acquired  by 
industry,  which  is  of  use  to  an  increasing  society 
when  confined  within  proper  limits.     I  call  those 
politically  idle,  who  neither  contribute  to  the  good 
of  society  by  their  labour  nor  their  riches  ;  who 
continually  accumulate,   but  never  spend ;  who 
are  reverenced  by  the  vulgar  with  stupid  admira- 
tion, and  regarded  by  the  wise  with  disdain  ;  who, 
being  victims  to  a  monastic  life,  and  deprived  of 
all  incitement  to  that  activity  which  is  necessary 
to  preserve  or  increase  its  comforts,  devote  all  their 
vigour  to  passions  of  the  strongest  kind,  the  pas- 
sions  of  opinio!) .  I  call  not  him  idle  who  enjoys  the 
fruits  of  the  virtues  or  vices  of  his  ancestors,  and, 
in  exchange  for  hib  pleasures,  supports  the  indus* 
trious  poor.     It  is  not  then  the  narrow  virtue  of 


86  AN  ESSAY  ON 

austere  moralists^  but  the  laws,  that  should  deter- 
mine what  species  of  idleness  deserves  punishment. 


CHAP.  XXV. 


Of  Banishment  and  Confiscation. 

HE  who  disturbs  the  public  tranquillity,  who 
does  not  obey  the  laws,  who  violates  the  condi- 
tions on  which  men  mutually  support  and  defend 
each  other,  ought  to  be  excluded  from  society, 
that  is,  banished. 

It  seems  as  if  banishment  should  be  the  punish- 
ment of  those  who,  being  accused  of  an  atrocious 
crime,  are  probably,  but  not  certainly,  guilty. 
For  this  purpose  would  be  required  a  law  the  least 
arbitrary  and  the  most  precise  possible;  which 
should  condemn  to  banishment  those  who  have 
reduced  the  community  to  the  fatar  alternative 
either  of  fearing  or  punishing  them  unjustly,  still, 
however,  leaving  them  the  sacred  right  of  proving 
their  innocence.  The  reasons  ought  to  be  strong- 
er for  banishing  a  citizen  than  a  stranger,  and 
for  the  first  accusation  than  for  one  who  hath 
been  often  accused. 


CRIMES  AND  PUNISHMENTS-  ^7 

Should  the  person  who  is  excluded  for  ever 
from  society  be  deprived  of  his  property  ?  This 
question  may  be  considered  in  different  lights. 
The  confiscation  of  effects,  added  to  banishment 
is  a  greater  punishment  than  banishment  alone  ; 
there  ought  then  to  be  some  cases,  in  which,  ac- 
cording to  the  crime,  either  the  whole  fortune 
should  be  confiscated,  or  part  only,  or  none  at  all. 
The  whole  should  be   forfeited,  when  the  law 
which  ordains  banishment  declares,  at  the  same 
time,  that  all  connections  or  relations  between  the 
society  and  the  criminal  are  annihilated.     In  this 
case  the  citizen  dies  ;  the  man  only  remains,  and, 
with  respect  to  a  political  body,  the  death  of  the 
citizen  should  have  the  same  consequences  with 
the  death  of  the  man.     It  seems  to  follow  then, 
that  in  this  case,  the  effects  of  the  criminal  should 
devolve  to  his  lawful  heirs.     But  it  is  not  on  ac- 
count of  this  refinement  that  I  disapprove  of  con- 
fiscations.    If  some  have  insisted,  that  they  were 
a  restraint  to  vengeance  and  the  violence  of  par- 
ticulars, they  have  not  reflected,   that,   though 
punishments  be  productive  of  good,  they  are  not, 
on  that  account,  more  just ;  to  be  just,  they  must 
be  necessary.  Even  an  useful  injustice  can  never 
be  allowed  by  a  legislator,  who  means  to  guard 
against  watchful  tyranny,  which,  under  the,  flat- 
tering pretext  of  momentary  advantages,  would 


8B  AN  ESSAY  ON 

establish  permanent  principles  of  destruction,  and, 
to  procure  the  ease  of  a  few  in  a  high  station, 
would  draw  tiears  from  thousands  of  the  poor. 

The  law  which  ordains  confiscations  sets  a 
price  on  the  head  of  the  subject,  with  the  guilty 
punishes  the  innocent,  and,  by  reducing  them  to 
indigence  and  despair,  tempts  them  to  become 
criminal.  Can  there  be  a  more  melancholy  spec- 
tacle than  a  whole  family  overwhelmed  with  in- 
famy and  niisery  from  the  crime  of  their  chief? 
a  crime,  which,  if  it  had  been  possible,  they  were 
restrained  from  preventing,  by  that  submission 
which  the  laws  themselves  have  ordained. 


CHAP.  XXVI. 


Of  tilt  Spirit  of  Family  in  States. 

IT  is  remarkable,  that  many  fatal  acts  of  injus- 
tice have  been  authorised  and  approved,  even  by 
the  wisest  and  most  experienced  men,  in  the  freest 
republics.  This  has  been  owing  to  their  having 
considered  the  state  rather  as  a  society  ofya?nilies 
than  o^men.  Let  us  suppose  a  nation  composed  of 
an  hundred  thousand  men,  divided  into  twenty 
thousand  families  of  five  persons  each,  including 


CRIMES  AND  PUNISHMENTS.  89 

the  head  or  master  of  the  family,  its  representative. 
If  it  be  an  association  of  families^  there  will  be 
twenty  thousand  men,  and  eighty  thousand  slaves  ; 
or  if  of  meriy  there  will  be  an  hundred  thousand 
citizens,  and  not  one  slave.  In  the  first  case  we 
behold  a  republic,  and  twenty  thousand  little  mo- 
narchies, of  which  the  heads  are  the  sovereigns  : 
in  the  second  the  spirit  of  liberty  will  not  only 
breath  in  every  public  place  of  the  city,  and  in  the 
assemblies  of  the  nation,  but  in  private  houses, 
where  men  find  the  greatest  part  of  their  happi- 
ness or  misery.  As  laws  and  customs  are  always 
the  effect  of  the  habir^  al  sentiments  of  the  mem- 
bers of  a  fepublic,  if  the  society  be  an  association 
©f  the  heads  of  families,  the  spirit  of  monarchy 
will  gradually  make  its  way  into  the  republic  itself, 
as  its  effects  will  only  be  restrained  by  the  oppo- 
site interests  of  each,  and  not  by  an  universal  spirit 
of  liberty  and  equali  y.  The  private  spirit  of  fa- 
mily is  a  spirit  of  minuteness,  and  confined  to  lit- 
tle concerns.  Public  bpirit,  on  the  contrary,  is  in- 
fluenced by  general  principles,  and  from  facts 
deduces  general  rules  of  utility  to  the  greatest 
number. 

In  a  republic  of  families,  the  children  remaia 
under  the  authority  of  the  father  as  long  as  he 
lives,  and  are  obliged  to  wait  until  his  death  for 

M 


90  AN  ESSAY  ON 

an  existence  dependent  on  the  laws  alone.  Ac- 
customed to  kneel  and  tremble  in  their  tender 
years,  when  their  natural  sentiments  were  less 
restrained  by  that  caution,  obtained  by  experi- 
ence, which  is  called  moderation,  how  should 
they  resist  those  obstacles  which  vice  always  op- 
poses to  virtue  in  the  languor  and  decline  of  age, 
when  the  despair  of  reaping  the  fruits  is  alone 
sufficient  to  damp  the  vigour  of  their  resolutions  ? 

In  a  republic,  where  every  man  is  a  citizen, 
family-subordination  is  not  the  effect  of  compul- 
sion, but  of  contract ;  and  the  sons,  disengaged 
from  the  natural  dependence  which  the  weakness 
of  infancy  and  the  necessity  of  education  requi- 
red, become  free  members  of  society,  but  remain 
subject  to  the  head  of  the  family  for  their  own 
advantage,  as  in  the  great  society. 

In  a  republic  of  families,  the  young  people, 
that  is,  the  most  numerous  and  most  useful  part 
of  the  nation,  are  at  the  discretion  of  their  fa- 
thers :  in  a  republic  of  men,  they  are  attached  to 
their  parents  by  no  other  obligation  than  that  sa- 
cred and  inviolable  one  of  mutual  assistance,  and 
of  gratitude  for  the  benefits  they  have  receiveji ; 
a  sentiment  destroyed  not  so  much  by  the  wick- 


eRIMES  AND  PUNISHMENTS.  91 

edness  of  the  human  heart,  as  by  a  mistaken  sub- 
jection prescribed  by  the  laws. 

These  contradictions  between  the  laws  of  fami- 
lies and  the  fundamental  laws  of  a  state  are  the 
source  of  many  others  between  public  and  private 
morality,  which  produce  a  perpetual  conflict  in 
the  mind.  Domestic  morality  inspires  submission 
and  fear  ;  the  other  courage  and  liberty.  That  in- 
sti  ucts  a  man  to  confine  his  beneficence  to  a  small 
number  of  persons,  not  of  his  own  choice;  this 
to  extend  it  to  all  mankind.  That  commands  a 
continual  sacrifice  of  himself  to  a  vain  idol  called 
i\\v  good  of  the  family ,  which  is  often  no  real  good 
to  any  one  of  those  who  compose  it ;  this  teaches 
him  to  consider  his  own  advantage,  without  of- 
fendingthe  laws,  or  excites  him  to  sacrifice  himself 
foi  the  good  of  his  country,  by  rewarding  him  be- 
forehand with  the  fanaticism  it  inspires.  Such 
contradictions  are  the  reason  that  men  neglect  the 
pursuit  of  virtue,  which  they  can  hardly  distin- 
guish amidst  the  obscuiity  and  confusion  of  natu- 
ral and  moral  objects.  How  frequently  are  men, 
upon  a  retrospection  of  their  actions,  astonished 
to  find  themselves  dishonest  ? 

In  proportion  to  the  increase  of  society  each 
member  becomes  a  smaller  part  of  the  whole ; 


$2  AN  ESSAY  ON 

and  the  republican  spirit  diminishes  in  th^  sam^ 
proportion,  if  neglected  by  the  laws.  Political  so- 
"cieties,  like  the  human  body,  have  their  limits  cir- 
cumscribed,  which  they  cannot  exceed,  without 
disturbing  thtir  economy.  It  seems  as  if  the 
greatness  of  a  state  ought  to  be  inversely  as  the 
sensibility  and  activity  of  the  individuals ;  if,  on 
the  contrary,  population  and  activity  increase  in 
the  same  proportion,  the  laws  will  with  difficulty 
prevent  the  crimes  arising  from  the  good  they 
have  produced.  An  overgrown  republic  can  only 
be  saved  from  despotism  by  subdividing  it  into  a 
number  of  confederate  republics.  But  how  is  this 
practicable?  By  a  despotic  dictator,  who,  with  the 
courage  of  Syda,  has  as  much  genius  for  building 
up  as  that  Roman  had  for  pulling  down.  If  he 
be  an  ambitious  man,  his  reward  will  be  immortal 
glory  f  if  a  philosopher,  the  blessings  of  his  fellow- 
citizens  will  sufficiently  console  him  for  the  loss 
of  authority,  though  he  should  not  be  insensible 
to  their  ingratitude. 

In  proportion  as  the  sentiments  which  unite  us 
to  the  state  grow  weaker,  those  which  attach  us 
to  the  objects  which  more  immediately  surround 
us  grow  stronger  ;  therefore,  in  the  most  despotic 
government,  friendships  are  more  durable,  and 
domestic  virtues  (which  are  always  of  the  lowest 


CRTMES  ANto  PrNISHMENTS.  ^ 

elass)  are  the  most  common,  or  the  only  virtues 
existing.  Hence  it  appears  how  confined  have  bten 
the  views  of  the  greatest  number  of  legislators* 


CHAP.  XXVII. 

Of  the  Mildness  of  Punishments, 

THE  course  of  my  ideas  has  carried  me  away 
from  my  subject,  to  the  elucidation  of  which  I  now 
return.  Crimes  are  moreefFtctually  prevented  by 
the  certainty  than  the  severity  of  punishment. 
Hence  in  a  magistrate  the  necessity  of  vigilance, 
and  in  a  judge  of  implacability,  which,  that  it  may 
become  an  useful  virtue,  should  be  joined  to  a 
mild  legislation.  The  certainty  of  a  small  punish- 
ment will  make  a  stronger  impression  than  the 
fear  of  one  more  severe,  if  attended  with  the  hopes 
of  escaping  ;  for  it  is  the  nature  of  mankind  to  be 
terrified  at  the  approach  of  the  smallest  inevitable 
evil,  whilst  hope,  the  best  gift  of  Heaven,  hath  the 
power  of  dispelling  the  apprehension  of  a  greater, 
especially  if  supported  by  examples  of  impunity, 
which  weakness  or  avarice  too  frequently  afford. 

If  punishments  be  very  severe,  men  are  natural- 
ly led  to  the  perpetration  of  other  crimes,  to  avoid 


£4  AN  ESSAY  ON 

the  punishment  due  to  the  first.  The  countries 
and  times  most  notorious  for  severity  of  punish- 
ments were  always  those  in  which  the  most  bloody 
and  inhuman  actions  and  the  most  atrocious 
crimes  were  committed  ;  for  the  hand  of  the  le- 
gislator and  the  assassin  were  directed  by  the 
same  spirit  of  ferocity,  which  on  the  throne  dic- 
tated laws  of  iron  to  slaves  and  savages,  and  in 
private  instigated  the*  subject  to  sacrifice  one  ty- 
rant to  make  room  for  another. 

In  proportion  as  punishments  become  more 
cruel,  the  minds  of  men,  as  a  fluid  rises  to  the 
same  he  ight  with  that  which  surrounds  it,  grow 
hardened  and  insensible  ;  and  the  force  of  the 
passions  still  continuing,  in  the  space  of  an  hun* 
dred  years  the  wheel  terrifies  no  more  than  for* 
merly  the  prison.  That  a  punishment  may  pro- 
duce the  effect  required,  it  is  sufficient  that  the 
evil  it  occasions  should  exceed  the  good  expect- 
ed from  the  crime,  including  in  the  calculation 
the  certainty  of  the  punishment,  and  the  privation 
of  the  expected  advantage.  All  severity  beyond 
this  is  superfluous,  and  therefore  tyrannical. 

Men  regulate  their  conduct  by  the  repeated 
impression  of  evils  they  know,  and  not  by  those 
with  which  they  are  unacquainted.  Let  us,  for 


CRIMES  AND  PUNISHMENTS.  95 

example,  suppose  two  nations,  in  one  of  which 
the  greatest  punishment  is  perpetual  slavery^  and 
in  the  other  the  wheel:  I  say,  that  both  will  in- 
spire the  same  dei^ree  of  terror,  and  that  their 
can  be  no  reasons  for  increasing  the  punishments 
of  the  first,  which  are  not  equally  valid  for  aug- 
menting those  of  the  second  to  more  lasting  and 
more  ingenious  modes  of  tormenting,  and  so  on 
to  the  most  exquisite  refinements  of  a  science 
too  well  known  to  tyrants. 

There  are  yet  two  other  consequences  of  cru- 
el punishments,  which  counteract  the  purpose  of 
their  institution,  which  was,  to  prevent  crimes. 
The  first  arises  from  the  impossibility  of  esta- 
blishing an  exact  proportion  between  the  crime 
and  punishment  ;  for  though  ingenious  cruelty 
hath  greatly  multiplyed  the  variety  of  torments, 
yet  the  human  frame  can  sufier  only  to  a  certain 
degree,  beyond  which  it  is  impossible  to  proceed, 
be  the  enormity  of  the  crime  ever  so  great.  The 
second  consequence  is  impunity.  Human  nature 
is  limited  no  less  in  evil  than  in  good.  Excessive 
barbarity  can  never  be  more  than  temporary,  it 
being  impossible  that  it  should  be  supported  by 
a  permanent  system  of  legislation  ;  for  if  the  laws 
be  too  cruel,  they  must  be  altered,  or  anarchy 
and  impunity  will  succeed. 


g^.  AN  ESSAY  ON 

Is  it  possible  without  bhuddcring  with  horror, 
to  r(*ad  in  history  of  the  barbarous  and  useless 
torments  that  were  cooly  invented  and  executed 
by  men  who  were  called  sages  ?  Who  does  not 
tremble  at  the  thoughts  of  thousands  of  wretches, 
whom  their  misery,  either  caused  or  tolerated  by 
the  laws,  which  favoured  the  few  and  outraged 
the  many,  had  forced  in  despair  to  return  to  a 
state  of  nature,  or  accused  of  impossible  crimes, 
the  fabric  of  ignorance  and  superstition,  or  guilty 
only  of  having  been  faithful  to  their  own  princi- 
ples ;  who,  I  say,  can,  without  horror,  think  of 
their  being  torn  to  pieces,  with  slow  and  studied 
barbarity,  by  men  endowed  with  the  same  pas- 
sions and  the  same  feelings  ?  A  delightful  spcc-^ 
tack  to  a  fanatic  multitude  ! 


CRIMES  AND  PUXISEIMENTS. 


CHAP.  XXVlII. 

Of  the  Punishment  of  Death. 

THE  useless  profusion  of  punishments,  which 
has  never  made  men  better,  induces  me  to  in- 
quire, whether  the  punishment  of  death  bt  really 
just  or  useful  in  a  well  governed  state  ?  What 
right y  I  ask,  have  men  to  cut  the  throats  of  their 
fellow-creatures?  Certainly  not  that  on  which 
the  sovereignty  and  laws  are  founded.  The  laws, 
as  I  have  said  before,  are  only  the  s.um  of  the 
smallest  portions  of  the  private  liberty  of  each 
individual,  and  represent  the  general  will,  which 
is  the  aggregate  of  that  of  each  individual.  -  Did 
any  one  ever  give  to  others  the  right  of  taking 
away  his  life  ?  Is  it  possible  that,  in  the  smallest 
portions  of  the  liberty  of  each,  sacrificed  to  the 
good  of  the  public,  can  be  contained  the  greatest 
of  all  good,  life  ?  If  it  were  so,  how  shall  it  be 
Aconciled  to  the  maxim  which  tells  us,  that  a 
man  has  no  right  to  kill  himself,  which  he  certain- 
ly  must  have,  if  he  could  give  it  away  to  another  ? 

But  the  punishment  of  death  is  not  authorised 
by  any  right ;  for  I  have  demonstrated  that  no 

N 


03^  AN  ESSAY  ON 

such  right  exists.  It  is  therefore  a  war  of  a  whole 
nation  against  a  citizen,  whose  destruction  they 
consider  as  necessary  or  useful  to  the  general 
good.  But  if  I  can  further  demonstrate  that  it 
is  neither  necessary  nor  useful,  I  shall  have  gain- 
ed the  cause  of  humanity. 

Tlue  death  of  a  citizen  cannot  be  necessary  but 
in  one  case  :  when,  though  deprived  of  his  liber- 
ty, he  has  such  povver  and  connections  as  may 
endanger  the  security  of  the  nation  ;  when  his 
existence  may  produce  a  dangerous  revolution  in 
the  established  form  of  government.  But,  even 
in  this  case,  it  can  only  be  necessary  when  a  na- 
tion is  on  the  verge  of  recovering  or  losing  its  li- 
berty, or  in  times  of  absolute  anarchy,  when  the 
disorders  themselves  hold  the  place  of  laws  :  but 
in  a  reign  of  tranquillity,  in  a  form  of  government 
approved  by  the  united  wishes  of  the  nation,  in  a 
state  well  fortified  from  enemies  without  and 
supported  by  strength  within,  and  opinion,  per- 
i>aps  more  efficacious,  where  all  power  is  lodged 
in  the  hands  of  a  true  sovereign,  where  riches  cs\n 
purchase  pleasures  and  not  authority,  there  can  oe 
no  necessity  for  taking  away  the  life  of  a  subject. 

If  the  experience  of  all  ages  be  not  sufficient 
to  prove,  that  the  punishment  of  death  has  never 


CRIMES  AND  PUNISHMENTS.  ^ 

prevented  determined  men  from  injuring  society^ 
if  the  example  of  the  Romans,  if  twenty  years' 
reign  of  Elizabeth,  empress  of  Russia,  in  which 
she  gave  the  fathers  of  their  country  an  example 
more  illustrious  than  many  conquests  bought  with 
blood  ;  if,  I  say,  all  this  be  not  sufficient  to  per- 
suade mankind,  who  always  suspect  the  voice  of 
reason,  and  who  choose  rather  to  be  led  by  autho- 
rity, let  us  consult  human  nature  in  proof  of  my 
assertion. 

It  is  not  the  intenseness  of  the  pain  that  has 
the  greatest  effect  on  the  mind,  but  its  continu- 
ance ;  for  our  sensibility  is  more  easily  and  more 
powerfully  affected  by  weak  but  repeated  impress- 
sions,  than  by  a  violent  but  momentary  impulse. 
The  power  of  habit  is  universal  over  every  sen- 
sible being.  As  it  is  by  that  we  learn  to  speak, 
to  walk,  and  to  satisfy  our  necessities,  so  the  ideas 
of  morality  are  stamped  on  our  minds  by  repeat- 
ed impressions.  The  death  of  a  criminal  is  a  ter- 
rible but  momentary  spectacle,  and  therefore  ii 
less  efficacious  method  of  deterring  others  than 
the  continued  example  of  a  man  deprived  of  hi  i 
liberty,  condemned,  as  a  beast  of  burden,  to  rt- 
pair,  by  his  labour,  the  injury  he  has  done  to  so- 
ciety, If  I  commit  such  a  crime^  says  the  specta- 
tor to  himself,  I  shall  be  reduced  to  that  misera- 


100  AN  ESSAY  ON 

ble  condition  for  the  rest  of  my  life,  A  much 
more  powerful  preventive  than  the  fear  of  death 
which  men  ahvays  behold  in  distant  obscurity. 

The  terrors  of  death  make  so  slight  an  impres- 
sion, that  it  has  not  force  enough  to  withstand 
the  forgetfulness  natural  to  mankind,  even  in  the 
most  essential  things,  especially  when  assisted  by 
the  passions.  Violent  impressions  surprise  us^ 
but  their  effect  is  momentary  ;  they  are  fit  to  pro- 
duce those  revolutions  which  instantly  transform 
a  common  man  into  a  Lacedaemonian  or  a  Per- 
sian ;  but  in  a  free  and  quiet  government  they 
ought  to  be  rather  frequent  than  strong. 

The  execution  of  a  criminal  is  to  the  multitude 
a  spectacle  which  in  some  excites  compassion  mix- 
ed with  indignation.  These  sentiments  occupy 
the  mind  much  more  than  that  salutary  terror 
which  the  laws  endeavour  to  inspire  ;  but,  in  the 
contemplation  of  continued  suffering,  terror  is  the 
only,  or  at  least  predominant  sensation.  The  se- 
verity of  a  punishment  should  be  just  sufficient  to 
excite  compassion  in  the  spectators,  as  it  is  in- 
tended more  for  them  than  for  the  criminal. 

A  punishment,  to  be  just,  should  have  only 
that  degree  of  severity  which  is  sufficient  to  de- 


GRIMES  AND  PUNISHMENTS.  101 

ter  others.  Now  there  is  no  man  who,  upon  the 
least  reflection,  would  put  in  competition  the  to- 
tal and  perpetual  loss  of  his  liberty,  with  the 
greatest  advantages  he  could  possibly  obtain  in 
consequence  of  a  crime.  Perpetual  slavery,  then, 
has  in  it  all  that  is  necessary  to  deter  the  most 
hardened  and  determined,  as  much  as  the  punish- 
ment of  death.  I  say  it  has  more.  There  are 
many  who  can  look  upon  death  with  intrepidity 
and  firmness,  some  through  fanaticism,  and  others 
through  vanity,  which  attends  us  even  to  the 
grave ;  others  from  a  desperate  resolution,  either 
to  get  rid  of  their  misery,  or  cease  to  live :  but 
fanaticism  and  vanity  forsake  the  criminal  in  sla- 
very, in  chains  and  fetters,  in  an  iron  cage,  and 
despair  seems  rather  the  beginning  than  the  end 
of  their  misery.  The  mind,  by  collecting  itself 
and  uniting  all  its  force,  can,  for  a  moment,  re- 
pel assailing  grief;  but  its  most  vigorous  efforts 
are  insufficient  to  resist  perpetual  wretchedness. 

In  all  nations,  where  death  is  used  as  a  punish- 
ment, every  example  supposes  a  new  crime  com- 
mitted ;  whereas,  in  perpetual  slavery,  every  cri- 
minal affords  a  frequent  and  lasting  example  ;  and 
if  it  be  necessary  that  men  should  often  be  witnes- 
ses of  the  power  of  the  laws,  criminals  should 
often  be  put  to  death :  but  this  supposes  a  fre- 


1Q2  AN  ESSAY  ON 

quency  of  crimes  ;  and  from  hence  this  punish- 
ment will  cease  to  have  its  effect,  so  that  it  must 
be  useful  and  useless  at  the  same  time. 

I  shall  be  told  that  perpetual  slavery  is  as  pain- 
ful a  punishment  as  death,  and  therefore  as  cru- 
el. I  answer,  that  if  all  the  miserable  moments 
in  the  life  of  a  slave  were  collected  into  one  point, 
it  would  be  a  more  cruel  punishment  than  any 
other  ;  but  these  are  scattered  through  his  whole 
life,  whilst  the  pain, of  death  exerts  ail  its  force 
in  a  moment.  There  is  also  another  advantasre 
in  the  punishment  of  slavery,  which  is,  that 
it  is  more  terrible  to  the  spectator  than  to 
the  sufferer  himself;  for  the  spectator  considers 
the  sum  of  all  his  wretched  moments  whilst  the 
sufl'erer,  by  the  misery  of  the  present,  is  prevent- 
ed from  thinking  of  the  future.  All  evils  are  in- 
creased by  the  imagination,  and  the  sufferer  finds 
resources  and  consolations  of  which  the  spectators 
are  ignorant,  who  judge  by  their  own  sensibility 
of  what  passes  in  a  mind  by  habit  grown  callous 
to  misfortune. 

Let  us,  for  a  moment,  attend  to  the  reasoning 
of  a  robber"  or  assassin,  who  is  deterred  from  viola- 
ting the  laws  by  the  gibbet  or  the  wheel.  I  am  sen- 
sible, that  to  develop  the  sentiments  of  one's  own 


C«LMES  AND  PUNISHMENTS.  103 

heart  is  an  art  which  education  only  can  teach ; 
but  although  a  villain  may  not  be  able  to  give  a 
clear  account  of  his  principles,  they  nevertheless 
influence  his  conduct.     He  reasons  thus  :  '  What 

*  are  these  laws  that  I  am  bound  to  respect,  which 

*  make  so  great  a  difference  between  me  and  the 

*  rich  man  ?  He  refuses  me  the  farthing  I  ask  of 
'  him,  and  excuses  himself  by  bidding  me  have  re- 

*  course  to  labour,  with  which  he  is  unacquainted. 

Who  made  these  laws  ?  The  rich  and  the  great, 

*  who  never  deigned  to  visit  the  miserable  hut  of 
'the  poor,  whohave  never  seen  him  dividing  a 

*  piece  of  mouldy  bread,  amidst  the  cries  of  his 

*  famibhed  children  and  |he  tears   of  his   wife. 

*  Let  us  break  those  ties,  fatal  to  the  greatest 
'  part  of  mankind,  and  only  useful  to  a  few  indo- 
'  lent  tyrants.  Let  us  attack  injustice  at  its  source. 
^  I  will  return  to  my  natural  state  of  independence. 

*  I  shall  live  free  and  happy  on  the  fruits  of  my 

*  courage  and  industry.  A  day  of  pain  and  re- 
'  pentance  may  come,  but  it  will  be  short ;  and 

*  for  an  hour  of  grief  I  shall  enjoy  years  of  plea- 

*  sure  and  liberty.     King  of  a  small  number  as 

*  determined  as  myself,  I  will  correct  the  mis- 

*  takes  of  fortune,  and  I  shall  see  those  tyrants 

*  grow   pale   and  tremble  at  the  sight  of  him, 

*  whom,  with  insulting  pride,  they  would  not  suf. 

*  fcr  to  rank  with  their  dogs  and  horses.' 


lOi  AN  ESSAY  ON 

Religion  then  presents  itself  to  the  mind  of  this 
lawless  villain,  and,  promising  him  almost  a  cer- 
tainty of  eternal  happiness  upon  the  easy  terms 
of  repentance,  contributes  much  to  lessen  the 
horror  of  the  last  scene  of  the  tragedy. 

But  he  who  foresees  that  he  must  pass  a  great 
number  of  years,  even  his  whole  life,  in  pain  and 
slavery,  a  slave  to  those  laws  by  which  he  was 
protected,  in  sight  of  his  fellow-citizens,  with 
whom  he  lives  in  freedom  and  society,  makes  an 
useful  comparison  .between  those  evils,  the  un- 
certainty of  his  success,  and  the  shortness  of  the 
time  in  which  he  shall  enjoy  the  fruits  of  his 
transgression.  The  example  of  those  wretches, 
continually  before  his  eyes,  makes  a  much  great- 
er impression  on  him  than  a  punishment,  which 
instead  of  correcting,  makes  him  more  obdurate. 

The  punishment  of  death  is  pernicious  to  so- 
ciety, from  the  example  of  barbarity  it  affords. 
If  the  passions,  or  the  necessity  of  war,  have 
taught  men  to  shed  the  blood  of  their  fellow  crea* 
tures,  the  laws,  which  are  intended  to  moderate 
the  ferocity  of  mankind,  should  not  increase  it  by 
examples  of  barbarity,  the  more  horrible  as  this 
punishment  is  usually  attended  with  formal  pa- 
geantry. Is  it  not  absurd,   that  the  laws,  which 


CRIMES  AND  PUNISHMENTS.  105 

detest  and  punish  homicide,  should,  in  order  to 
prevent  murder,  publicly  commit  murder  them- 
selves ?  What  are  the  true  and  most  useful  laws  ? 
Those  compacts  and  conditions  which  all  would 
propose  and  observe  in  those  moments  when  pri- 
vate interest  is  silent,  or  combined  with  that  of 
the  public.  What  are  the  natural  sentiments  of 
every  person  concerning  the  punishment  of  death  ? 
We  may  read  them  in  the  contempt  and  indigna- 
tion with  which  every  one  looks  on  the  execution- 
er, who  is  nevertheless  an  innocent  executor  of  the 
public  will,  a  good  citiz^i,  who  contributes  to  the 
advantage  of  society,  the  instrument  of  the  gene- 
ral security  within,  as  good  soldiers  are  without. 
What  then  is  the  origin  of  this  contradiction  ? 
Why  is  this  sentiment  of  mankind  indelible  to  the 
scandal  of  reason  ?  It  is,  that,  in  a  secret  corner 
of  the  mind,  in  which  the  original  impressions  of 
nature  are  still  preserved,  men  discover  a  senti- 
ment which  tells  them,  that  their  lives  are  not  law- 
fully in  the  power  of  any  one,  but  of  tHat  necessity 
only  which  with  its  iron  sceptre  rules  the  uni- 
verse. 

What  must  men  think,  when  they  see  wise  ma- 
gistrates and  grave  ministers  of  justice,  with  in- 
difference and  tranquillity,  dragging  a  criminal  to 
death,  and  whilst  a  wretch  trembles  with  agony, 

O 


X06  AN  ESSAY  ON 

expecting  the  fatal  stroke,  the  judge^  who  has 
condemned  him,  with  the  coldest  insensibility, 
and  perhaps  with  no  small  gratification  from  the 
exertion  of  his  authority^  quits  his  tribunal,  to  en- 
joy the  comforts  and  pleasures  of  life  ?  They  will 
say, '  Ah  !  those  cruel  formalities  of  justice  are 

*  a  cloak  to  tyranny,  they  are  a  secret  language,  a 
^  solemn  veil,    intended  to  conceal  the  sword  by 

*  which  we  are  sacrificed  to  the  insatiable  idol  of 

*  despotism.     Murder,  which  they  would  repre- 

*  sent  to  us  an  horrible  crime,  we  see  practised 
'  by  them  without  repugnance  or  remorse.     Let 

*  us  follow  their  example.     A  violent  death  ap- 

*  peared  terrible  in  their  descriptions,  but  we  see 

*  that  it  is  the  aifair  of  a  moment.     It  will  be  still 

*  less  terrible  to  him  who,  not  expecting  it,  es- 

*  capes  almost  all  the  pain.'  Such  is  the  fatal 
though  absurd  reasonings  of  men  who  are  disposed 
to  commit  crimes,  on  whom  the  abuse  of  religi- 
on has  more  influence  than  religion  itself. 

If  it  be  objected,  that  almost  all  nations  in  all 
ages  have  punished  certain  crimes  with  death,  I 
answer,  that  the  force  of  these  examples  vanishes 
w^hen  opposed  to  truth,  against  which  prescrip- 
tion is  urged  in  vain.  The  history  of  mankind 
is  an  immense  sea  of  errors,  in  which  a  few  ob- 
scure truths  may  here  and  there  be  found. 


CRIMES  AND  PUNISHMENTS.  10/ 

But  human  sacrifices  have  also  been  common 
in  almost  all  nations.  That  some  societies  only 
either  few  in  number,  or  for  a  very  short  time, 
abstained  from  the  punishment  of  death,  is  ra- 
ther favourable  to  my  argument ;  for  such  is  the 
fate  of  great  truths,  that  their  duration  is  only  as 
a  flash  of  lightning  in  the  long  and  dark  night  of 
error.  The  happy  time  is  not  yet  arrived,  when 
truth,  as  falsehood  has  been  hitherto,  shall  be  the 
portion  of  the  greatest  number. 

I  am  sensible  that  the  voice  of  one  philosopher 
is  too  weak  to  be  heard  amidst  the.  clamours  of  a 
multitude,  blindly  influenced  by  custom ;  but 
there  is  a  small  number  of  sages  scattered  on  the 
face  of  the  earth,  who  will  echo  to  me  from  the 
bottom  of  their  hearts ;  and  if  these  truths  should 
happily  force  their  way  to  the  thrones  of  princes 
be  it  known  to  them,  that  they  come  attended 
with  the  secret  wishes  of  all  mankind ;  and  tell 
the  sovereign  who  deigns  them  a  gracious  recep- 
tion, that  his  fame  shall  outshine  the  glory  of 
conquerors,  and  that  equitable  posterity  will  ex- 
alt his  peaceful  trophies  above  those  of  a  Titus,  an 
Antoninus,  or  a  Trajan. 

How  happv  were  mankind  if  laws  were  now 
to  be  first  formed !  now  that  we  see  on  the  thrones 


dOS  ^  ANf  ESSAY  ON 

of  Europe  benevolent  monarchs,  friends  to  the 
virtues  of  peace,  to  the  arts  and  sciences,  fathers 
of  their  people,  though  crowned,  yet  citizens;  the 
increase  of  whose  authority  augments  the  happi- 
ness of  their  subjects,  by  destroying  that  inter- 
mediate despotism  which   intercepts  the  prayers 
of  the  people  to    the  throne.     If  these  humane 
princes  have  suffered  the  old  laws  to  subsist,  it 
is  doubtless    because  the    are    deterred   by  the 
numberless  obstacles  which  oppose  the  subver- 
sion of  errors  established  by  the  sanction  of  ma- 
ny ages;  and  therefore  every  wise  citizen  will 
wish  for  the  increase  of  their  authority. 


y 


GRIMES  AND  PUNISHMENTS.  109 


CHAP.  XXIX. 

Of  Imprisonment » 

TH  \T  a  magistrate,  the  executor  of  the  laws, 
should  have  a  power  to  imprison  a  citizen,  to  de- 
prive the  man  he  hates  of  his  liberty,  upon  frivo- 
lous pretences,  and  to  leave  his  friend  unpunished, 
notwithstanding  the  strongest  proofs  of  his  guilt, 
is  an  error  as  common  as  it  is  contrary  to  the 
end  of  society,  which  is  personal  security. 

Imprisonment    is  a  punishment  which  differs 
from  all  others  in  this  particular,  that  it  necessa- 
rily precedes  conviction  ;  but  this  difference  does 
not  destroy  a  circumstance  which  is  essential  and 
common  to  it  with  all  other  punishments,  viz. 
that  it  should  never  be  inflicted  but  when  ordain- 
ed by  the  law.     The  law  should  therefore  deter- 
mine the  crime,  the  presumption,  and  the  evi- 
dence sufficient  to  subject  the  accused  to  impri- 
sonment   and  examination.     Public  report,  his 
fiiejht,  his  extrajudicial  confession,  that  of  an  ac- 
complice, menaces,  and  his  constant  enmity  with 
th(     person  injured,    the    circumstances    of  the 
crime,  and  such  other  evidence,  may  be  sufficient 


110  AN  ESSAY  ON 

to  justify  the  imprisonment  of  a  citizen.  But  the 
nature  of  this  evidence  should  be  determined  by 
the  laws,  and  not  by  the  magistrates,  whose  de- 
crees are  always  contrary  to  political  liberty,  when 
they  are  not  particular  applications  of  a  general 
maxim  of  the  public  code.  When  punishments 
become  less  severe,  and  prisons  less  horrible,  when 
compassion  and  humanity  shall  penetrate  the  iron 
gates  of  dungeons,  and  direct  the  obdurate  and  in- 
exorable ministers  of  justice,  the  laws  may  then  be 
satisfied  with  weaker  evidence  for  imprisonment. 

4 

A  person  accused^  imprisoned,  tried,  and  ac- 
quitted, ought  not  to  be  branded  with  any  degree 
of  infamy.  Among  the  Romans  we  see  that  many 
accused  of  very  great  crimes,  and  afterwards  de- 
clared innocent,  were  respected  by  the  people,  and 
honoured  with  employments  in  the  state.  But 
why  is  the  fate  of  an  innocent  person  so  different 
in  this  age  ?  It  is  because  the  present  system  of 
penal  laws  presents  to  our  minds  an  idea  of  power 
rather  than  of  justice  :  it  is  because  the  accused 
and  convicted  are  thrown  indiscriminately  into  the 
same  prison?  because  imprisonment  is  rather  a 
punishment  than  a  means  of  securing  the  person 
of  the  accused  ;  and  because  the  interior  power, 
which  defends  the  laws,  and  the  exterior,  which 
defends  the  throne  and  kingdom,   are  separate, 


CRIMES  AND  PUNISHMENTS.  Ill 

when  they  should  be  united.  If  the  first  were 
(under  the  common  authority  of  the  laws)  com- 
bined with  the  right  of  judging,  but  not  however 
immediately  dependent  on  the  magistrate,  the 
pomp  that  attends  a  military  corps  would  take  off 
the  infamy,  which,  like  all  popular  opinions,  is  more 
attached  to  the  manner  and  form  than  to  the  thing 
itself,  as  may  be  seen  in  military  imprisonment, 
which,  in  the  common  opinion,  is  nut  so  disgrace- 
ful as  the  civil.  But  the  barbarity  and  ferocity 
of  our  ancestors,  the  hunters  of  the  north,  still 
subsist  among  the  people  in  our  customs  and  our 
laws,  which  are  always  several  ages  behind  the 
actual  refinements  of  a  nation^ 


112  AN  ESSAY  ON 


CHAP.  XXX. 

Of  Frosecution  and  Prescription, 

THE  proofs  of  the  crime  being  obtained,  and 
the  certainty  of  it  determined,  it  is  necessary  to 
allow  the  criminal  time  and  means  for  his  justifica- 
tion ;  but  a  time  so  short  as  not  to  diminish  that 
promptitude  of  punishment,  which^  as  we  have 
shewn,  is  one  of  the  most  powerful  means  of  pre- 
ventmg  crimes.  A  mistaken  humanity  may  ob- 
ject to  the  shortness  of  the  time,  but  the  force  of 
the  objection  will  vanish  if  we  consider  that  the 
danger  of  the  innocent  increases  with  the  defects 
of  the  legislation. 

The  time  for  inquiry  and  for  justification  should 
be  fixed  by  the  laws,  and  not  by  the  judge,  who, 
in  that  case,  would  become  legislator.  With  re- 
gard to  atrocious  crimes,  which  are  long  remem- 
bered, when  they  are  once  proved,  if  the  criminal 
have  fled,  no  time  should  be  allowed ;  but  in  less 
considerable  and  more  obscure  crimes,  a  time 
should  be  fixed,  after  which  the  delinquent  should 
be  no  longer  uncertain  of  his  fate  :  for,  in  the  lat- 
ter case,  the  length  of  time,  in  which  the  crime  is 


CRIMES  AND  PUNISHMENTS.  113 

almost  forgotten,  prevents  the  example  of  impu- 
nity, and  allows  the  criminal  to  amend,  and  be- 
come a  better  member  of  society. 

General  principles  will  here  be  sufficient,  it  be- 
ing impossible  to  fix  precisely  the  limits  of  time 
for  any  given  legislation,  or  for  any  society  in  any 
particular  circumstance.  I  shall  only  add,  that, 
in  a  nation  willing  to  prove  the  utility  of  moderate 
punishment,  laws  which,  according  co  the  nature 
of  the  crime,  increase  or  diminish  the  time  of  in- 
quiry and  justification,  considering  the  imprison- 
ment or  the  voluntary  exile  of  the  criminal  as  a 
part  of  the  punishment,  will  form  an  easy  division 
of  a  small  number  of  mild  punishments  for  a 
great  number  of  crimes. 

But  it  must  be  observed,  the  time  for  inquiry 
and  justification  should  not  increase  in  direct  pro- 
portion to  the  atrociousness  of  crimes ;  for  the 
probability  of  such  crimes  having  been  committed 
is  inversely  as  their  atrociousness.  Therefore 
the  time  for  inquiring  ought,  in  some  cases,  to  be 
diminished,  and  that  for  justification  increased,  et 
vice  versa.  This  may  appear  to  contradict  what 
I  have  said  above,  namely,  that  equal  punishments 
may  be  decreed  by  unequal  crimes,  by  consider- 
ing the  time  allowed  the  criminal  or  the  prison  as 
a  punishment. 


114  AN  ESSAY  ON 

In  order  to  explain  this  idea,  I  shall  divide 
crimes  into  two  classes.  The  first  comprehends 
homicide,  and  all  greater  crimes ;  the  second  crimes 
of  an  inferior  degree.  This  distinction  is  founded 
in  human  nature.  The  preservation  of  life  is  a 
natural  right ;  the  preservation  of  property  is  a 
right  of  society.  The  motives  that  induce  men  to 
shake  off  the  natural  sentiment  of  compassion, 
which  must  be  destroyed  before  great  crimes  can 
be  committed,  are  much  less  in  number  than  those 
by  which,  from  the  natural  desire  of  being  happy, 
they  are  instigated  to  violate  a  right  which  is  not 
founded  in  the  heart  of  man,  but  is  the  work  of 
society.  The  different  degrees  of  probability  in 
these  two  classes,  require  that  they  should  be  re- 
gulated on  different  principles.  In  the  greatest 
crimes,  as  they  are  less  frequent,  and  the  proba- 
bility of  the  innocence  of  the  accused  being  greater, 
the  time  allowed  him  for  his  justification  should 
be  greater,  and  the  time  of  inquiry  less.  For,  by 
hastening  the  definitive  sentence,  the  flattering 
hopes  of  impunity  are  destroyed,  which  are  more 
dangerous  as  the  crime  is  more  atrocious.  On 
the  contrary,  in  crimes*  of  less  importance,  the 
probability  of  the  innocence  being  less,  the  time 
of  inquiry  should  be  greater,  and  that  of  justifica- 
tion less,  as  impunity  is  not  so  dangerous. 

But  this  division  of  crimes  into  two  classes 


\ 


CRIMES  AND  PUNISHMENTS.  H5 

should  not  be  admitted,  if  the  consequences  of 
impunity  were  in  proportion  to  the  probability  of 
the  crime.  It  should  be  considered,  that  a  person 
accused,  whose  guilt  or  innocence  is  not  determin- 
ed for  want  of  proofs,  may  be  again  imprisoned 
for  the  same  crime,  and  be  subject  to  a  new  trial, 
if  fresh  evideYice  arises  within  the  time  fixed. 

This  is,  in  my  opinion,  the  best  method  of  pro- 
vidirt.e^  at  the  same  time  for  the  security  and  li- 
berty of  the  subject,  without  favouring  one  at  the 
expense  of  the  other ;  which  may  easily  happen, 
since  both  these  blessings,  the  unalienable  and 
etjual  patrimony  of  every  citizen,  are  liable  to  be 
invaded  the  one  by  open  or  disguised  despotism, 
and  the  other  by  tumultuous  and  popular  anarchy. 


llg  AN  ESSAY  ON 


CHAP.  XXXI. 

Of  Crimes  of  difficult  Proof 

WITH  the  forgoing  principles  in  view,  it  will 
appear  astonishing,  that  reason  hardly  ever  pre- 
sided at  the  formation  of  the  laws  of  nations ; 
that  the  weakest  and  most  equivocal  evidence, 
and  even  conjectures,  have  been  thought  suf- 
ficient proof  for  crimes  the  most  atrociou'^^,  (and 
therefore  most  improbable  )  the  most  obscure  and 
chimerical ;  as  if  it  were  the  interest  of  the  laws 
and  the  judge  not  to  enquire  into  the  truth,  but 
to  prove  the  crime  ;  as  if  there  were  not  a  grea- 
ter risk  of  condemning  an  innocent  person,  when 
the  probability  of  his  guilt  is  less. 

The  generality  of  men  want  that  vigour  of  mind 
and  resolution  which  are  as  necessary  for  great 
crimes  as  for  great  virtues,  and  which  at  the  same 
time  produce  both  the  one  and  the  other  in  those 
nations  which  are  supported  by  the  activity  of 
their  government,  and  a  passion  for  the  public 
good.  For  in  those  which  subsist  by  their  great- 
ness or  power,  or  by  the  goodness  of  their  laws, 
the  passions,  being  in  a  weaker  degree,  seem  cal- 


CHIMES  AND  PUNISHMENTS.  117 

culated  rather  to  maintain  than  to  improve  the 
form  of  government.  This  naturally  leadb  us  to 
an  important  conclusion,  viz.  that  great  crimes 
do  not  always  produce  the  destruction  of  a  nation. 

There  are  some  crimes  which,  though  frequent 
m  society,  ^re  of  difficult  prpof,  a  circumstance 
admitted  as  equal  to  the  > probability  of  the  inno- 
cence of  the  accused.  But  as  the  frequency  of 
these  crimes  is  not  owing  to  their  impunity  so 
much  as  to  other  causes,  the  danger  of  their  pass- 
ing unpunished  is  of  less  importance,  and  there- 
fore the  time  of  examination  and  prescription  may 
be  equally  diminished.  These  principles  are  dif- 
ferent from  those  commonly  received  ;  for  it  is 
in  crimes  which  are  proved  with  the  greatest  dif- 
ficulty, such  as  adultery  and  sodomy,  that  pre- 
sumptions, half  proofs,  &c.  are  admitted ;  as  if 
a  man  could  be  half  innocent,  and  half  guilty, 
that  is,  half  punishable  and  half  absolvable.  It  is 
in  these  cases  that  torture  should  exercise  its  cru- 
el power  on  the  person  of  the  accused,  the  wit- 
nesses, and  even,  his  whole  family,  as,  with  un- 
feeling indifference,  some  civilians  have  taught^ 
who  pretend  to  dictate  laws  to  nations. 

Adultery  is  a  crime  which,  politically  consider- 
ed, owes  its  existence  to  two  causes,  viz.  perni- 


lis  AX  ESSAY  ON 

cious  laws,  and  the  powerful  attraction  between 
the  sexes.  This  attraction  is  siniilar  in  many  cir- 
cumstances  to  gravity,  the  spring  of  motion  in  the 
universe.  Like  this,  it  is  diminished  by  distance; 
one  regulates  the  motions  of  the  body,  the  other 
of  the  soul.  But  they  differ  in  one  respect ;  the 
force  of  gravity  decreases  in  proportion  to  the 
obstacles  that  oppose  it, » the  other  gathers  strength 
and  vigour  as  the  obstacles  increase. 

If  I  were  speaking  to  nations  guided  only  by 
the  laws  of  nature,  I  would  tell  them,  that  there 
is  a  .considerable  difference  between  adultery  and 
all  other  crimes.  Adultery  proceeds  from  an 
abuse  of  that  necessity  which  is  constant  and  uni- 
versal in  human  nature ;  a  necessity  anterior  to 
the  formation  of  society,  and  indeed  the  foun- 
der of  society  itself;  whereas  all  other  crimes 
tend  to  the  destruction  of  society,  and  arise  from 
momentary  passions,  and  not  from  a  natural  ne- 
cessity. It  is  the  opinion  of  those  who  have  stu- 
died history  and  mankind,  that  this  necessity  is 
constantly  in  the  same  degree  in  the  same  cli- 
mate. If  this  be  true,  useless,  or  rather  perni- 
cious,  must  all  laws  and  customs  be  which  tend 
to  diminish  the  sum  total  of  the  effects  of  this 
passion.  Such  laws  would  only  burden  one  part 
of  society  with  the  additional  necessities  of  tho 


CRIMES  AXD  PUNISHMENTS.  lii> 

Other ;  but,  on  the  contrary,  wise  are  the  laws 
which,  following  the  natural  course  of  the  river, 
divide  the  stream  into  a  number  of  equal  branch- 
es, preventing  thus  both  sterility  and  inundation. 

Conjugal  fidelity  is  always  greater  in  propor- 
tion as  marriages  are  more  numerous  and  less' 
difficult.  But,  when  the  interest  or  pride  of  fa- 
milies, or  paternal  authority,  not  the  inclination 
of  the  parties,  unite  the  sexes,  gallantry  soon 
breaks  the  slender  ties,  in  spite  of  common  mora- 
lists, who  exclaim  against  the  effect,  whilst  they 
pardon  the  cause.  But  these  reflections  are  use- 
less to  those  who,  living  in  the  true  religion,  act 
from  sublimer  motives,  which  correct  the  eternal 
laws  of  nature. 

The  act  of  adultery  is  a  crime  so  instantane- 
ous, so  mysterious,  and  so  concealed  by  the  veil 
which  the  laws  themselves  have  woven,  a  veil  ne- 
cessary indeed,  but  so  transparent  as  to  heighten 
rather  than  conceal  the  charms  of  the  object,  the 
opportunities  are  so  frequent,  and  the  danger  of 
discovery  so  easily  avoided,  that  it  were  much 
easier  for  the  laws  to  prevent  this  crime,  than  to 
punish  it  when  committed. 

To  every  crime  which,  from  its  nature,  must 
frequently  remain  unpunished,  the  punishment  is 


120  AN  ESSAY  ON 

an  incentive.  Such  is  the  i  ature  of  the  human 
mind,  that  difficulties,  if  not  unsurmountable,  nof 
too  great. for  our  natural  indolence,  embellish  the 
object,  and  spur  us  on  to  the  pursuit.  They  are 
so  many  barriers  that  confine  the  imagination  to 
the  object,  and  oblige  us  to  consider  it  in  every 
point  of  view.  In  this  agitation,  the  mind  natu- 
rally inclines  and  fixes  itself  to  the  most  agreea- 
ble part,  studiously  avoiding  every  idea  that 
might  create  disgust. 

The  crime  of  sodomy,  so  severely  punished  by 
the  laws,  and  for  the  proof  of  which  are  employed 
tortures,  which  often  triumph  over  innocence  it- 
self, has  its  source  much  less  in  the  passions  of 
man  in  a  free  and  independent  state  than  in  so- 
ciety and  a  slave.  It  is  much  less  the  effect  of  a 
satiety  in  pleasures^  than  of  that  education  w^hich 
in  order  to  make  men  useful  to  others,  begins  by 
making  ihem  useless  to  themselves.  In  those 
public  seminaries,  where  ardent  youth  are  care- 
fully excluded  from  all  commerce  with  the  other 
sex,  as  the  vigour  of  nature  blooms,  it  is  consu- 
med in  a  manner  not  only  useless  to  mankind, 
but  which  accelerates  the  approach  of  old  age. 

The  murder  of  bastard  children  is,  in  like  man- 
ner, the  effect  of  a  cruel  dilemma,  in  which  a  wo- 


CRIMES  AND  PUNISHMENTS.  121 

man  finds  herself,  who  has  been  seduced  through 
weakness,  or  overcome  by  force.  The  ahei na- 
tive is,  either  her  own  infamy,  or  the  death  of  a 
being  who  is  incapable  of  feeling  the  loss  of  life. 
How  can  she  avoid  preferring  the  last  to  the  ine- 
vitable misery  of  herself  and  her  unhappy  infant ! 
The  best  method  of  preventing  this  crime  would 
be  effectually  to  protect  the  weak  woman  from 
that  tyranny  which  exaggerates  all  vices  that  can- 
not be  concealed  under  the  cloak  of  virtue. 

I  do  not  pretend  to  lessen  that  just  abhorrence 
which  these  crimes  deserve,  but  to  discover  the 
sources  from  whence  they  spring ;  and  I  think  I 
may  draw  the  following  conclusion:  That  the 
punishment  of  a  crime  cannot  be  just,  that  is  ne^ 
cessary  )  if  the  laws  have  not  endeavoured  to 
prevent  that  crime  by  the  best  means  which  times 
and  circumstances  would  allow. 


Q 


122  AN  ESSAY  ON 


CHAP.  XXXIL 

Of  Suicide, 

SUICIDE  is  a  crime  which  seems  not  to  ad* 
mit  of  punishment,  properly  speaking  ;  for  it  can- 
not be  inflicted  but  on  the  innocent,  or  upon  an 
insensible  dead  body.  In  the  first  case,  it  is  un< 
just  and  tyrannical,  for  political  liberty  supposes 
all  punishments  entirely  personal ;  in  the  second, 
it  has  the  same  effect,  by  way  of  example,  as  the 
scourging  a  statue.  Mankind  love  life  too  well ; 
the  objects  that  surround  them,  the  seducing 
phantom  of  pleasure,  arid  hope,  that  sweetest  er- 
ror of  mortals,  which  makes  men  swallow  such 
large  draughts  of  evil,  mingled  with  a  very  few 
drops  of  good,  allure  them  too  strongly,  to  ap- 
prehend that  this  crime  will  ever  be  common 
from  its  unavoidable  impunity.  The  laws  are 
obeyed  through  fear  of  punishment,  but  death 
destroys  all  sensibility.  What  motive  then  can 
restrain  the  desperate  hand  of  suicide  F 

He  who  kills  himself  does  a  less  injury  to  so- 
ciety than  he  who  quits  his  country  for  ever ;  for 
the  other  leaves  his  property  behind  him,  but  this 


CRI^IES  AND  PUNISHMENTS.  123 

carries  with  him  at  least  a  part  of  his  substance. 
Bt  sides,  as  the  strength  of  society  consists  in  tlie 
number  of  citizens,  he  who  quits  one  nation  to  r£- 
side  in  another,  becomes  a  double  loss.  This  then 
is  the  question  :  whether  it  be  advantageous  to  so- 
ciety that  its  members  should  enjoy  the  unUmited 
privilege  of  migration  ? 

Every  law  that  is  not  armed  with  force,  or 
which,  from  circumstances,  must  be  ineffectual, 
should  not  be  promulgated.  Opinion,  which 
reigns  over  the  minds  of  men,  obeys  the  slow  and 
indirect  impressions  of  the  legislator,  but  resists 
them  when  violently  and  directly  applied  ;  and 
useless  laws  communicate  their  insignificance  to 
the  most  salutary,  which  are  regarded  more  as 
obstacles  to  be  surmounted  than  as  safeguards  of 
the  public  good.  But  further,  our  preceptions  be- 
ing limited,  by  enforcing  the  observance  of  laws 
which  are  evidently  useless,  we  destroy  the  in- 
fluence of  the  most  salutary. 

From  this  principle  a  wise  dispenser  of  public 
happiness  may  draw  some  useful  consequences, 
the  explanation  of  which  would  carry  me  too  far 
from  my  subject,  which  is  to  prove  the  inutility 
of  making  the  nation  a  prison.  Such  a  law  is  vain ; 
because,  unless  inaccessible  rocks  or  impassible 


124  AN  ESSAY  ON 

seas  divide  the  country  from  all  others,  how  will 
it  be  possible  to  secure  every  point  of  the  circum- 
ference, or  how  will  you  guard  the  guards  them- 
selves ?  Besides,  this  crime  once  committed  can- 
not be  punished ;  and  to  punish  it  before  hand 
would  be  to  punish  the  intention  and  not  the  ac- 
tion, the  will,  which  is  entirely  out  of  the  power 
of  human  laws.  To  punish  the  absent  by  confis- 
cating his  effects,  besides  the  facility  of  collusion, 
which  would  inevitably  be  the  case,  and  which, 
without  tyranny,  could  not  be  prevented,  would 
put  a  stop  to  all  commerce  with  other  nations. 
To  punish  the  criminal  when  he  returns,  would 
be  to  prevent  him  from  repairing  the  evil  he  had 
already  done  to  society,  by  making  his  absence 
perpetual.  Besides,  any  prohibition  would  in- 
crease the  desire  of  removing,  and  would  infallibly 
prevent  strangers  from  settling  in  the  country. 

What  must  we  think  of  a  government  which 
has  no  means  but  fear  to  keep  its  subjects  in  their 
own  country,  to  which,  by  the  first  impressions  of 
their  infancy,  they  are  so  strongly  attached.  The 
m(3st  certain  method  of  keeping  men  at  home  is  to 
make  them  happy ;  and  it  is  the  interest  of  every 
stattr  to  turn  the  balance,  not  only  pf  commerce, 
but  •>[  felii^ity,  in  favour  of  its  subjects.  The 
pleasures  of  luxury  are  not  the  principle  sources 


CRIMES  AND  PITNTSHMENTS.  125 

of  this  happiness,  though,  by  preventing  the  too 
great  accumulation  of  wealth  in  a  few  hands,  they 
become  a  necessary  remedy  against  the  too  great 
inequality  of  individuals,  which  always  increases 
with  the  progress  of  society. 

When  the  populousness  of  a  country  does  not 
increase  in  proportion  to  its  extent,  luxury  fa- 
vours despotism  ?  for  where  men  are  most  dis- 
persed there  is  least  industry,  and  where  there  is 
least  industry  the  dependence  of  the  poor  upon 
the  luxury  of  the  rich  is  greatest,  and  the  union 
of  the  oppressed  against  the  oppressors  is  least 
to  be  feared.  In  such  circumstances,  rich  and 
powerful  men  more  easily  command  distinction, 
respect,  and  service,  by  which  they  are  raised  to 
a  greater  height  above  the  poor ;  for  men  are 
more  independent  the  less  they  are  observed,  and 
are  least  observed  when  most  numerous.  On  the 
contrary,  when  the  number  of  people  is  too  great 
in  proportion  to  the  extent  of  a  country,  luxury 
is  a  check  to  despotism  ;  because  it  is  a  spur  to 
industry,  and  because  the  labour  of  the  poor  af- 
fords so  many  pleasures  to  the  rich,  that  they  dis- 
regard the  luxury  of  ostentation,  which  would  re- 
mind the  people  of  their  dependence.  Hence  we 
see,  that,  in  vast  and  depopulated  states,  the  luxu- 
ry of  ostentation  prevails  over  that  of  convenience; 


126  AN  ESSAY  ON 

but  in  countries  more  populous,  the  luxury  of 
convenience  tends  constantly  to  diminish  the  lux- 
ury of  ostentation. 

The  pleasures  of  luxury  have  this  inconveni. 
ence,  that  though  they  employ  a  great  number  of 
hands,  yet  they  are  only  enjoyed  by  a  few,  whilst 
the  rest  who  do  not  partake  of  them,  feel  the 
want  more  sensibly  on  comparing  their  state  with 
that  of  others.  Security  and  liberty,  restrained 
by  the  laws,  are  the  basis  of  happiness,  and  when 
attended  by  these,  the  pleasures  of  luxury  favour 
population,  without  which  they  become  the  in- 
struments of  tyranny.  As  the  most  noble  and 
generous  animals  fly  to  solitude  and  inaccessible 
deserts,  and  abandon  the  fertile  plains  to  man 
their  greatest  enemy,  so  men  reject  pleasure  it- 
self when  offered  by  the  hand  of  tyranny. 

But,  to  return: — If  it  be  demonstrated  that 
the  laws  which  imprison  men  in  their  own  coun- 
try are  vain  and  unjust,  it  will  be  equally  true  of 
those  which  punish  suicide  ;  for  that  can  only  be 
punished  after  death,  which  is  in  the  power  of 
God  alone  ;  but  it  is  no  crime  with  regard  to  m^n, 
because  the  punishnient  falls  on  an  innocent  fami- 
ly. If  it  be  objected,  that  the  consideration  of 
such  a  punishment  may  prevent  the  crime,  I  an- 


CRIMES  AND  PUNISHMENTS.  127 

swer,  that  he  who  can  calmly  renounce  the  plea- 
sure of  existence,  who  is  so  weary  of  life  as  to 
brave  the  idea  of  eternal  misery,  will  never  be 
influenced  by  the  more  distant  and  less  powerful 
considerations  of  family  and  children. 


CHAP.  XXXIIL 

Of  Smuggling, 

SMUGGLING  is  a  real  offence  against  the 
sovereign  and  the  nation ;  but  the  punishment 
should  not  brand  the  offender  with  infamy,  be- 
cause this  crime  is  not  infamous  in  the  public 
opinion.  By  inflicting  infamous  punishments  for 
crimes  that  are  not  reputed  so,  we  destroy  that 
idea  where  it  may  be  useful.  If  the  same  punish- 
ment be  decreed  for  killing  a  pheasant  as  for  kil- 
ling a  man,  or  for  forgery,  all  difference  between 
those  crimes  will  shortly  vanish.  It  is  thus  that 
moral  sentiments  are  distroyed  in  the  heart  of 
man;  sentiments,  the  work  of  many  ages  and  of 
much  bloodshed;  sentiments  that  are  so  slowly 
and  with  so  much  difficulty  produced,  and  for  the 
establishment  of  which  such  sublime  motives 
and  such  an  apparatus  of  ceremonies  were 
thought  necessary . 


128  AN  ESSAY  ON 

This  crime  is  owing  to  the  laws  themselves; 
for  the  higher  the  duties  the  greater  is  the  advan- 
tage, and  consequently  the  temptation;  which 
temptation  is  increased  by  the  facility  of  perpetra- 
tion, when  the  circumference  that  is  guarded  is  of 
great  extent,  and  the  merchandise  prohibited  is 
small  in  bulk.  The  seizure  and  loss  of  the  goods 
attempted  to  be  smuggled,  together  with  those 
that  are  found  along  with  them,  is  just!  but  it 
would  be  better  to  lessen  the  duty,  because  men 
risk  only  in  proportion  to  the  advantage  expected. 

This  crime  being  a  theft  of  what  belongs  to  the 
prince,  and  consequently  to  the  nation,  why  is  it 
not  attended  with  infamy  ?  I  answer,  that  crimes 
which  men  consider  as  productive  of  no  bad  con- 
sequences to  themselves,  do  not  interest  them  suf- 
ficiently to  excite  their  indignation.  The  generali- 
ty of  mankind,  upon  whom  remote  consequences 
make  no  impression,  do  not  see  the  evil  that  may 
result  from  the  practice  of  smuggling,  especially 
if  they  reap  from  it  any  present  advantage.  They 
only  perceive  the  loss  sustained  by  the  prince. 
They  are  not  then  interested  in  refusing  their  es- 
teem to  the  smuggler,  as  to  one  who  has  commit- 
ted a  theft  or  a  forgery,  or  other  crimes,  by  which 
they  themselves  may  suffer,  from  this  evident 
principle,  that  a  sensible  being  only  interests  him- 
self in  those  evils  with  which  he  is  acquainted. 


CRIAfES  AND  PUNISHMENTS.  129 

Shall  this  crime  then,  committtd  by  one  who 
has  nothing  to  lose,  go  unpunished  ?  No.  There 
are  certain  species  of  smuggling,  which  so  parti- 
cularly affect  the  revenue,  a  part  of  government 
so  essential,  and  managed  with  so  much  difficulty, 
that  they  deserve  imprisonment,  or  even  slavery  ; 
bTit  yet  of  such  a  nature  as  to  be  proportioned  to 
the  crime.  For  example,  it  would  be  highly  unjust, 
that  a  smuggler  of  tobacco  should  suffer  the  same 
punishment  with  a  robber  or  assassin  ;  but  it  would 
be  most  conformable  to  the  nature  of  the  offence, 
that  the  produce  of  his  labour  should  be  applied  to 
the  use  of  the  crown,  which  he  intended  to  defraud. 


R 


130  AN  ESSAY  ON 


CHAP.  XXXIV. 

Of  Bankrvyts. 

TFIE  necessity  of  good  faith  in  contracts,  and 
the  support  of  commerce,  oblige  the  legislator  to 
secure  for  the  creditors  the  persons  of  bankrupts. 
It  is,  however,  necessary  to  distinguish  between 
the  fraudulent  and  the  honest  bankrupt.  The 
fraudulent  bankrupt  should  be  punished  in  the 
same  manner  with  him  who  adulterates  the  coin; 
for,  to  falsify  a  piece  of  coin,  which  is  a  pledge 
of  the  mutual  obligations  between  citizens,  is  not 
a  greater  crime  than  to  violate  the  obligations 
themselves.  But  the  bankrupt  who,  after  a  strict 
examination,  has  proved  before  proper  judges, 
that  either  the  fraud  or  losses  of  others,  or  mis- 
fortunes unavoidable  by  human  prudence,  have 
stripped  him  of  his  substance,  upon  what  barbi^- 
rous  pretence  is  he  thrown  into  prison,  and  thus 
deprived  of  the  only  remaining  good,  the  melan- 
choly enjoyment  of  mere  liberty  ?  Why  is  he 
ranked  with  criminals,  and  in  despair  compelled 
to  repent  of  his  honesty  ?  Conscious  of  his  inno- 
cence, he  lived  easy  and  happy  under  the  protec- 
tion of  those  laws  which,  it  is  true,  he  violated, 


CHIMES  AND  PUNISHMENTS.  131 

but  not  intentionally  ;  laws  dictated  by  the  ava- 
rice of  the  rich,  and  accepted  by  the  poor,  sedu- 
ced by  that  universal  and  flattering  hope,  which 
makes  men  believe  that  all  unlucky  accidents  are 
the  lot  of  others,  and  the  most  fortunate  only 
their  share.  Mankmd,  when  influenced  by  the 
first  impressions,  love  cruel  laws,  although,  being 
subject  to  them  themselves,  it  is  the  interest  of 
every  person  that  they  should  be  as  mild  as  possi- 
ble ;  but  the  fear  of  being  injured  is  always  more 
prevalent  than  the  intention  of  injuring  others. 

But,  to  return  to  the  honest  bankrupt :  let  his 
debt,  if  you  will,  not  be  considered  as  cancelled, 
till  the  payment  of  the  whole  ;  let  him  be  refused 
the  liberty  of  leaving  the  country  without  leave  of 
his  creditors,  or  of  carrying  into  another  nation 
that  industry  which,  under  a  penalty,  he  should 
be  obliged  to  employ  for  their  benefit ;  but  what 
pretence  can  justify  the  depriving  an  innocent 
though  unfortunate  man  of  his  liberty,  without 
the  least  utility  to  his  creditors  ? 

But,  say  they,  the  hardships  of  confinement 
will  induce  him  •  to  discover  his  fraudulent  trans- 
actions ;  an  event  that  can  hardly  be  supposed, 
after  a  rigorous  examin.ition  of  his  conduct  and 
afl'dirs.     But  if  tlicy  are  not  discovered,  he  will 


iS2  AN  ESSAY  ON 

escape  unpunished.  It  is,  I  think,  a  maxim  of 
government,  that  the  importance  of  the  political 
inconveniencies  arising  from  the  impunity  of  a 
crime,  are  directly  as  the  injury  to  the  public,  and 
inversely  as  the  difficulty  of  proof. 

It  will  be  necessary  to  distinguish  fraud,  attend- 
ed with  aggravating  circumstances,  from  simple 
fraud,  and  that  from  perfect  innocence.  For  the 
first,  let  there  be  ordained  the  same  punishment 
as  for  forgery  ;  for  the  second  a  less  punishment, 
but  with  the  loss  of  liberty  ;  and  if  perfectly  ho- 
nest,  let  the  bankrupt  himself  choose  the  method 
of  re-establishing  himself,  and  of  satisfying  his 
creditors  ;  or,  if  he  should  appear  not  to  ha\'e  been 
strictly  honest,  let  that  be  determhied  by  his  cre- 
ditors '  but  these  distinctions  should  be  fixed  by 
the  laws,  which  alone  are  impartial,  and  not  by 
the  arbitrary  and  dangerous  prudence  of  judges.  *^ 

With  what  ease  might  a  sagacious  legislator 

*  It  may  be  alledg-ed  that  the  interest  of  commerce  and  property 
should  be  secured  ;  but  commerce  and  property  are  not  the  end  of 
the  social  compact,  but  the  means  of  obtaining  that  end  ;  and  to  ex- 
post  all  the  members  of  society  to  cruel  laws,  to  preserve  them  frf)m 
evils  necessarily  occasioned  by  the  infinite  combinations  which  result 
from  the  actual  state  of  political  societies,  would  be  to  make  the  end 
subservient  to  the  means,  a  paralogism  in  all  sciences,  and  particu- 
larly in  politics.  In  the  former  editions  of  this  work  I  myself  fell  into 
this  error,  when  I  said  that  the  honest  bankrupt  should  be  kept  in 
custody,  as  a  pledge  for  his  debts,  or  employed  as  a  slave  to  work  for 
his  creditors.  I  am  ashame^i  of  having  adopted  so  cruel  an  opinion. 
I  have  been  accused  of  impiety  ;  I  did  not  deserve  it.  I  have  been  ac- 
cused of  sedition  ;  I  deserved  it  as  little.  But  I  insulted  all  the  rights 
of  humanity,  and  was  never  reproached.. 


CRIMES  AND  PUNISHMENTS.  133 

prevent  the  greatest  part  of  fraudulent  bankrupt- 
cies, and  remedy  the  nusfortunes  that  befal  the 
honest  and  industrious  !  A  public  regjister  of  all 
contracts^  with  the  Hberty  of  consulting  it  allow- 
ed to  every  citizen  :  a  public  fund,  formed  by  a 
contribution  of  the  opulent  merchants,  for  the 
timt'ly  assistance  of  unfortunate  industry,  were  es- 
tablishments that  could  produce  no  real  inconveni- 
encies,  and  many  advantage  s.  But,  unhappily,  the 
most  simple,  the  easiest,  yet  the  wisest  laws,  that 
wait  only  for  the  nod  of  the  legislator,  to  difliise 
through  nations  wealth,  power,  and  felicity,  laws 
which  would  be  regarded  by  future  generations 
with  eternal  gratitude,  are  either  unknown  or  re- 
jected. A  restless  and  trifling  spirit,  the  timid 
prudence  of  the  present  moment,  a  distrust  and 
aversion  to  the  most  useful  novelties,  possess  the 
minds  of  those  who  are  empowered  to  regulate 
the  actions  of  mankind. 


134  AN  ESSAY  ON 


CHAP.  XXXV. 

Of  Sanctuar'ies, 

ARE  sanctuaries  just?  Is  a  convention  between 
nations  mutually  to  give  up  their  criminals  useful? 

In  the  whole  extent  of  a  political  state  there 
should  be  no  place  independent  of  the  laws.  Their 
power  should  follow  every  subject,  as  the  shadow 
follows  the  body.  Sanctuaries  and  impunity  dif- 
fer only  in  degree,  and  as  the  effect  of  punish- 
ments depends  more  on  their  certainty  than  their 
greatness,  men  are  more  strongly  invited  to  crimes 
by  sanctuaries  than  they  are  deterred  by  punish- 
ment. To  increase  the  number  of  sanctuaries  is 
to  erect  so  many  little  sovereignties ;  for  where 
the  laws  have  no  power,  new  bodies  will  be  form- 
ed in  opposition  to  the  public  good,  and  a  spirit 
established  contrary  to  that  of  the  state.  Histo- 
ry informs  us,  that  from  the  use  of  sanctuaries 
have  arisen  the  greatest  revolutions  in  kingdoms 
and  in  opinions. 

Some  have  pretende*d,  that  in  whatever  coun- 
trv  a  crime,  that  is,  an  action  contrary  to  the  laws 


GRIMES  AND  PUNISHMENTS.  135 

of  society,  be  committed,  the  criminal  may  be 
justly  punislVed  for  it  in  any  other;  as  if  the  cha- 
racter of  subject  w.ere  indelible,  or  synonymous 
with  or  worse  than  that  of  slave  ;  as  if  a  man  cotild 
live  in  one  country  and  be  subject  to  the  laws  of 
another,  or  be  accountable  for  his  actions  to  two 
sovereigns,  or  two  codes  of  laws  often  contradic- 
tory.    There  are  also  those  who  think,  that  an  act 
of  cruelty  committed,  for  example,at  Constantino- 
ple may  be  punished  at  Paris,  for  this  abstracted 
reason,  that  he  who  offends  humanity  should  have 
enemies  in  all  mankind,  and  be  the  object  of  uni- 
versal execration  ;  as  if  judges  were  to  be  the 
knights-errant  of  human  nature  in  general,  rather 
than  guardians  of  particular  conventions  between 
men.     The  place  of  punishment  can  certainly  be 
no  other  than  that  where  the  crime  was  commit- 
ted ;  for  the  necessity  of  punishmg  an  individu- 
al for  the  general  good,  subsists  there,  and  there 
only.     A  villain,  if  he   has  not  broke  through 
the  conventions  of  a  society,  of  which,  by  my 
supposition,  he  was  not  a  member,  may  be  fear- 
ed, and  by  force  banished  and  excluded  from  that 
society,  but  ought  not  to  be  formally  punished  by 
the  laws,  which  were  only  intended  to  maintain 
the  social  compact,  and  not  to  punish  the  intrinsic 
malignity  of  actions. 

Whether  it  be  useful  that  nations  should  mu- 


136  AN  ESSAY  ON 

tually  deliver  up  their  criminals  ?  Although  the 
certainty  of  there  being  no  part  of  the  earth 
where  crimes  are  not  punished,  may  be  a  means 
of  preventing  them,  I  shall  not  pretend  to  deter- 
mine this  question,  until  laws  more  conformable 
to  the  necessities,  and  rights  of  humanity,  and  un- 
til milder  punishments,  and  the  abolition  of  the 
arbitrary  power  of  opinion,  shall  afford  security 
to  virtue  and  innocence  when  oppressed  ;  and 
until  tyranny  shall  be  confined  to  the  plains  of 
Asia,  and  Europe  acknowledge  the  universal  em- 
pire of  reason  by  which  the  interests  of  sove- 
reigns and  subjects  are  best  united. 


CHAP.  XXXVI. 


OfUewardsfor  apprehending  or  killing  Criminals. 

LET  us  now  inquire,  whether  it  be  advanta- 
geous to  society,  to  set  a  price  on  the  head  of  a 
criminal,  and  so  to  make  of  every  citizen  anexecu- 
tioner?  If  the  offender  hath  taken  refuge  in  another' 
state,  the  sovereign  encourage^  his  subjects  tocijm- 
mit  a  crime,  and  to  expose  th(  mselves  to  a  just 
punishment ;  he  insults  that  nation,  and  authorises 
the  subjects  to  commit  on  their  neighbours  similar 
usurpations.  If  the  criminal  stiil  remain  in  his  own 


CRIMES  AND  PUNISHMEN  IS.  13f 

country,  to  set  a  price  upon  his  head  is  the  strong- 
est proof  of  the  weakness  of  the  government.  He 
who  has  strength  to  defend  himself  will  not  pur- 
chase the  assistance  of  another.  Besides,  such  an 
edict  confounds  ail  the  ideas  of  virtue  and  moraii* 
ty,  already  too  wavering  in  the  mind  of  man.  At 
one  time  treachery  is  punished  by  the  laws,  at 
another  encouraged.  With  one  hand  the  legislator 
strengthens  the  ties  of  kindred  and  friendship,  and 
with  the  other  rewards  the  violation  of  both.  Al- 
ways in  contradiction  with  himself,  now  he  invites 
the  suspecting  minds  of  men  to  mutual  confidence, 
and  now  he  plants  distrust  in  every  heart.  To 
prevent  one  crime  he  gives  birth  to  a  thousand. 
Such  are  the  expedients  of  weak  nations,  whose 
laws  are  like  temporary  repairs  to  a  tottering  fa- 
brie.  On  the  contrary,  as  a  nation  becomes  more 
enlightened,  honesty  and  mutual  confidence  be- 
come more  necessary,  and  are  daily  tending  to 
unite  with  sound  policy.  Artifice,  cabal,  and  ob* 
scure  and  indirect  acti(jns  are  more  easily  disco- 
ver'ed,  and  the  interest  of  the  whole  is  better  secu- 
red against  the  passions  of  the  individual. 

Even  the  timesofignorap.ee,  when  private  vir- 
tue was  encouraged  by  public  morality,  may  afford 
instruction  and  example  to  more  enlightened  ages^ 
But  laws  which. reward  treason  excite  clandestine 

S 


138  '  AN  ESSAY  OX 

war  and  mutual  distrust,  and  oppose  that  necessa- 
ry union  of  morality  and  policy  which  is  the 
foundation  of  happiness  and  universal  peace. 


CHAP.  xxxyiL 


Of  Allcmpts,  Jlcnmplicesy  and  Tardon. 

THE  laws  do  not  punish  the  intention  ;  never- 
theless, an  attempt,  which  manifests  the  intention  of 
committingacrime,  deserves  a  punishment,  though 
less,  perhaps,  than  if  the  crime  were  actually  per- 
petrated. The  importance  of  preventing  even  at- 
tempts to  commit  a  crime  sufficiently  authorises  a 
punishment ;  but,  as  there  may  be  an  interval  of 
time  between  the  attempt  and  the  execution,  it  is 
proper  to  reserve  the  greater  punishment  for  the 
actual  commission,  that  even  after  the  attempt 
there  may  be  a  motive  for  desisting. 

In  like  manner,  with  regard  to  the  accomplices, 
they  ought  not  to  suffer  so  severe  a  punishment 
as  the  immediate  perpetrator  of  the  crime  :  but 
this  for  a  different  reason.  When  a  number  of 
men  unite,  and  run  a  common  risk,  the  greater  the 
danger,  the  more  they  endeavour  to  distribute  it 
ecpally.  Now,  if  tlie  principals  be  punished  more 


CUliMES  \ND  PUNISHMENTS.  1J9 

everely  than  the  accessaries,  it  will  prevent  the 
danger  from  being  equally  divided,  and  will  in- 
crease the  difficulty  of  finding  a  person  to  execute 
the  crime,  as  his  danger  is  greater  by  the  difference 
of  the  punishment.  There  can  be  but  one  exccpt- 
tion  to  this  rule,  and  that  is,  when  the  principal 
receives  a  reward  from  the  accomplices.  In  that 
case,  as  the  difference  of  the  danger  is  compen. 
sated,  the  punishment  should  be  equal.  These 
reflections  may  appear  too  refined  to  those  who 
do  not  consider,  that  it  is  of  great  importance 
that  the  laws  should  leave  the  associates  as  few 
means  as  possible  of  agreeing  among  themselves. 

In  some  tribunals  a  pardon  is  offered  to  an  ac- 
complice in  a  great  crime,  if  he  discover  his  as- 
sociates. This  expedient  has  its  advantages  ar^ 
disadvantages.  The  disadvantages  are,  that  the 
law  authorises  treachery,  which  is  detested  even 
by  the  villains  themselves,  and  introduces  crimes 
of  cowardice,  which  are  much  more  pernicious  to 
a  nation  than  crimes  of  courage.  Courage  is  not 
common,  and  only  wants  a  benevolent  power  to 
direct  it  to  the  public  good.  Cowardice,  on  the 
contrary,  is  a  frequent,  self-interested,  and  conta- 
gious evil,  which  can  never  be  improved  into  a 
virtue.  Besides,  the  tribunal  which  has  recourse 
to  this,  method,  betrays  its  fallibility,  and  the  h\ws 


their  weakness,  by  imploring  the  assistance  of 
Ithose  by  vvhona  they  are  violated. 

The  advantages  are,  that  it  prevents  great 
crimes,  the  effects  of  which  being  public,  and  the 
perpetrators  concealed,  terrify  the  people.  It  also 
contributes  to  prove,  that  he  who  violates  the 
laws,  which  are  public  conventions,  will  also  vio- 
late private  compacts.  It  appears  to  me  that  a 
general  law,  promising  a  reward  to  every  accom- 
plice who  discovers  his  associates,  would  be  bet- 
ter than  a  special  declaration  in  every  particular 
case  ;  because  it  would  prevent  the  union  of  those 
villains,  as  it  would  inspire  a  mutual  distrust,  and 
each  would  be  afraid  of  exposing  himself  alone  to 
danger.     The  accomplice,   however,    should  be 

pardoned,    on  condition    of   transportation.- 

BRt  it  is  in  vain  that  I  torment  myself  with  endea- 
vouring to  extinguish  the  remorse  I  feel  in  at- 
tempting to  induce  the  sacred  laws,  the  monu- 
ment of  public  confidence,  the  foundation  of  hu- 
man morality,  to  authorise  dissimulation  and  per- 
fidy. But  what  an  example  does  it  offer  to  a  na- 
tion to  see  the  interpreters  of  the  laws  break  their 
promise  of  pardon,  and  on  the  strength  of  learned 
subtleties,  and  to  the  scandal  of  pubiic  faith,  drag 
him  to  punishment  who  hath  accepted  of  their  in- 
vitatioii  J  Such  examples  are  not  uncommon, 
and  this  is  the  reason  that  political .  society  is  re- 


CRIMES  AND  PUNISHMENTS.  141 

garded  as  a  complex  machine,  the  springs  of 
which  are  moved  at  pleasure  by  the  most  dexte- 
rous or  most  powerful. 


CHAP.  XXXVIII. 


0/  suggestive  Interrogations. 

THE  laws  forbid  suggestive  interrogations; 
that  is,  according  to  the  civilians,  question^  which, 
with  regard  to  the  circumstances  of  the  crime,  are 
special  when  they  should  be  general ;  or,  in  other 
words,  those  questions  which,  having  an  imme- 
diate reference  to  the  crime,  suggests  to  the  cri- 
minal an  immediate  answer.  Interrogations,  ac- 
I  cording  to  the  law,  ought  to  lead  to  the  fact  in- 

\directly  and  obliquely,  but  never  directly  or  im- 

I 

/mediately.  The  intent  of  this  injunction  is,  either 
that  they  should  not  suggest  to  the  accused  an 
immediate  answer  that  might  acquit  him,  or  that 
they  think  it  contrary  to  nature  that  a  man  should 
accuse  himself.  But  whatever  be  the  motive,  the 
laws  have  fallen  ipto  a  palpable  contradiction,  in 
condemning  suggestive  interrogations,  whilst  they 
authorise  torture.  Can  there  be  an  interrogation 
more  suggestive  than  pain  ?  Torture  will  suggest 
to  a  robust  villain  an  obstinate  silence,  that  he 


142  AN  ESSAY  ON 

may  exchange  a  greater  punishment  for  a  less  ; 
and  to  a  feeble  man  confession,  to  relieve  him 
from  the  present  pain,  which  affects  him  more 
than  the  apprehension  of  the  future.  If  a  special 
interrogation  be  contrary  to  the  right  of  nature, 
as  it  obliges  a  man  to  accuse  himself,  torture  will 
certainly  do  it  more  effectually.  But  men  are  in- 
fluenced more  by  the  names  than  the  nature  of 
things. 

He  who  obstinately  refuses  to  answer  the  inter- 
rogatories deserves  a  punishment,  which  should 
be  fixed  by  the  laws,  and  that  of  the  severest 
kind ;  the  criminals  should  not,  by  their  silence, 
avade  the  example  which  they  owe  the  public. 
But  this  punishment  is  not  necessary  when  the 
guilt  of  the  criminal  is  indisputable  ;  because  in 
that  case  interrogation  is  useless,  as  is  likewise  his 
confession,  when  there  are,  without  it,  proofs  suf- 
ficient. This  last  case  is  most  common,  for  expe- 
rience shews,  that  in  the  greatest  number  of  cri- 
minal prosecutions  the  culprit  pleads  not  guilty. 


CRIMES  AND  PUNISHMENTS.  143 


CHAP.  XXXIX. 

Of  a  particular  Kind  of  Crimes, 

THE  reader  will  perceive  that  I  have  omitted 
speaking  of  a  certain  class  of  crimes  which  has 
covered  Europe  with  blood,  and  raised  up  those 
horrid  piles,,  from  whence,  amidst  clouds  of  whirl- 
ing smoke,  the  groans  of  human  victims,  the 
crackling  of  their  bones,  and  the  frying  of  their 
still  panting  bowels,  were  a  pleasing  spectacle  and 
agreeable  harmony  to  the  fanatic  multitude.  But 
men  of  understanding  will  perceive,  that  the  age 
and  country  in  which  I  live,  will  not  permit  me  to 
inquire  into  the  nature  of  this  crime.  It  were 
too  tedious  and  foreign  to  my  subject  to  prove  the 
necessity  of  a  perfect  uniformity  of  opinions  in  a 
state,  contT'dry  to  the  examples  of  many  nations ; 
to  prove  that  opinions,  which  differ  from  one 
another  only  in  some  subtile  and  obscure  distinc- 
tions, beyond  the  reach  of  human  capacity,  may 
nevertheless  disturb  the  public  tranquillity,  unless 
one  only  religion  be  established  by  authority; 
and  that  some  opinions,  by  being  contrasted  and 
opposed  to  each  other,  in  their  collision  strike 
out  the  truth  ;  whilst  others,  feeble  in  themselves, 
require  the  support  of  power  and  authority.     It 


lU  AN  ESSAY  oK 

would,  I  say,  carry  me  too  far,  where  I  to  prove, 
that,  how  odious  soever  is  the  empire  of  force 
over  the  opinions  of  mankmd,  from  whom  it  on- 
ly obtains  dissimulation  followed  by  coniempt, 
and  although  it  may  seem  contrary  to  the  spirit 
of  humanity  and  br(itherlv  love,  commanded  us 
by  reason,  and  authority,  which  we  more  repect, 
it  is  nevertheless  necessary  and  indispensable. 
We  are  to  believe,  that  all  these  paradoxes  are 
solved  beyond  a  doubt,  and  are  conformable  ta 
the  true  mterest  of  mankind,  if  practised  by  a 
lawful  authority.  1  write  only  of  crimes  which 
violate  the  laws  of  nature  and  the  social  contract, 
and  not  of  sins,  even  the  temporal  punishments 
of  which  must  b<  detcrmi'nd  from  other  princi- 
ples than  those  of  limited  Human  philosophy. 


CRIMES  AND  PUNISHMENTS,  US 


CHAP.  XL. 

Of  false  Ideas  of  Utility. 

A  PRINCIPAL  source  of  errors  and  injiist- 
tice  are  false  ideas  of  utility.  For  example  •  that 
legislator  has  false  ideas  of  utility  who  considers 
particular  more  than  general  converiiencies,  who 
had  rather  command  the  sentiments  of  mankind 
than  excite  them,  and  dares  say  to  reason,  '  Be 
thou  a  slave ;'  who  would  sacrifice  a  thousand 
real  advantages  to  the  fear  of  an  imaginary  or  tri- 
fling inconvenience  ;  who  would  deprive  men  of 
the  use  of  fire  for  fear  of  their  being  burnt,  and 
of  water  for  fear  of  their  being  drowned ;  and 
who  knows  of  no  means  of  preventing  evil  but  by 
destroying  it* 

'fhe  laws  of  this  nature  are  those  which  forbid 
tcf  wear  arms,  disarming  those  only  who  are  not 
disposed  to  commit  the  crime  which  the  laws 
mean  to  prevent.  Can  it  be  supposed,  that  those 
who  have  the  courage  to  violate  the  most  sacred 
laws  of  humanity,  and  the  most  important  of  the 
code,  will  respect  the  less  considerable  and  arbi- 
trary injunctions,  the  violation  of  which  is  so  ea- 
sy, and  of  so  little  comparative  importance  ?  Does 


146  AN  ESSAY  ON 

not  the  execution  of  thiu  law  deprive  the  subject 
of  that  personal  liberty,  so  dear  to  mankind  and 
to  the  wise  legislator?  and  does  it  not  subject 
the  innocent  to  all  the  disagreeable  circumstan- 
ces that  should  only  fall  on  the  guilty?  It  cer- 
tainly makes  the  situation  of  the  assaulted  worse, 
and  of  the  assailants  better,  arid  rather  encoura- 
ges thaii  prevents  murder,  as  it  requires  less  cou- 
rage to  attack  unarmed  than  armed  persons. 

It  is  a  false  idea  of  utility  that  would  give  to  a 
inultitude  of  sensible  beings  that  symmetry  and 
order  which  inanimate  matter  is  alone  capable  of 
receiving ;  to  neglect  the  present,  which  are  the 
orjy  motives  that  act  with  force  and  constancy  on 
the  multitude,  for  the  raore  distant,  whose  im- 
pressions are  weak  and  transitory,  unless  increas- 
ed by  that  strength  of  imagination  so  very  uncom- 
mon among  mankind.  Finally,  that  is  a  false 
idea  of  utility  which,  sacrificing  things  to  nahies, 
separates  the  public  good  from  that  of  individuals. 

There  is  this  difference  b^ween  a  state  of  sq- 
,ciety  and  a  state  of  nature,  that  a  savage  does  no 
jnore  mischief  to  another  than  is  necessary  to  pro- 
cure some  benefit  to  himself ;  but  a  man  in  society 
is  sonietimcs  tempted,  from  a  fault  in  the  laws, 
to  injure  another  without  any  prospect  of  advan* 


CRBIES  AND  PUNISHMENTS.     •  i47 

tage.  The  tyrant  inspires  his  vassals  with  fear 
and  servihty,  which  rebound  upon  him  with  dou- 
ble force,  and  are  the  cause  of  his  torment.  Fear, 
the  more  private  and  domestic  it  is,  the  less  dan- 
gerous is  it  to  him  who  makes  it  the  instrument 
of  his  happiness  ;  but  the  more  it  is  public,  and 
the  greater  number  of  people  it  affects,  the  greater 
is  the  probability  that  some  mad,  desperate,  or 
designing  person  will  seduce  others  to  his  party 
by  flattering  expectations ;  and  this  will  be  the 
more  easily  accomplished  as  the  danger  of  the 
enterprise  will  be  divided  amongst  a  greate»num- 
ber,  because  the  value  the  untiappy  set  upon  theif 
existence  is  less,  as  their  misery  is  greater. 


14»  *  AN  ESSAY  ON 


CHAP.  •XLI, 

Of  the  Means  of  preventing  Crimes, 

IT  is  better  to  prevent  crimes  than  to  punish 
them.  This  is  the  fundamental  principle  of  good 
legislation,  which  is  the  art  of  conducting  men  to 
the  maxitnum  of  happiness,  and  to  the  minimum 
of  misery,  if  we  may  apply  this  mathematical  ex- 
pression  to  the  good  and  evil  of  life.  But  the 
means  hitherto  employed  for  that  purpose  are  ge- 
nerally inadequate,  or  contrary  to  the  tjid  propo- 
sed. It  is  impossible  to  reduce  the  tumultuous 
activity  of  mankind  to  absolute  regularity ;  for, 
amidst  the  various  and  opposite  attractions  of 
pleasure  and  pain,  human  laws  are  not  sufficient 
entirely  to  prevent  disorders  in  society.  Such, 
however  is  the  chimera  of  weak  men,  when  in- 
vested with  authority.  To  prohibit  a  number  of 
indifferent  actions  is  no^to  prevent  the  crimes 
which- they  may  produce,  but  to  create  new  ones, 
it  is  to  change  at  will  the  ideas  of  virtue  and 
vice,  which,  at  other  times,  we  are'  told,  are  eter- 
nal and  immutable.  To  what  a  situation  should  we 
be  reduced  if  every  thing  were  to  be  forbidden 
that  mighc  possibly  lead  to  a  crime  ?  We  must  be 


GRIMES  AND  PUNISHMENTS.  I49 

deprived  of  the  use  of  our  senses  :  for  one  motive 
that  induces  a  man  to  commit  a  real  crime,  there 
are  a  thousand  which  excite  him  to  those  indif- 
ferent actions  which  are  called  crimes  by  bad 
laws.  If  then  the  probability  that  a  crime  will 
be  committed  be  in  proportion  to  the  number  of 
motives,  to  extend  the  sphere  of  crimes  will  be  to 
increase  that  probability.  The  generality  of  laws 
are  only  exclusive  privileges,  the  tribute  of  all  to 
the  advantages  of  a  few. 

Would  you  prevent  crimes  ?  Let  the  laws  be 
clear  and  simple,  let  the  entire  force  of  the  nation 
be  united  in  their  defence,  let  them  be  intended 
rather  to  favour  every  individual  than  any  parti- 
cular classes  of  men^  let  the  laws-  be  feared,  and 
the  laws  only.  The  fear  of  the  laws  is  saluntary, 
but  the  fear  of  men  is  a  fruitful  and  fatal  source 
of  crimes.  Men  enslaved  are  more  voluptuous, 
more  del5auched^  and  more  cruel  than  those  who 
are  in  a  state  of  freedom.  These  study  the  scien- 
ces, the  interest  of  nations,  have  great  objects  be- 
fore their  eyes,  and  imitate  them  ;  but  those, 
whose  views  are  confined  to  the  present  moment, 
endeavour,  amidst  the  distraction  of  riot  and  de- 
bauchcry,  to  forget  their  situation ;  accustomed 

« 

to  the  uncertainty  of  all  events^  for  the  laws  de- 
termine none,  the  consequences  of  their  crimes 


150 


AN  ESSAY  ON 


become  problematical,  which  gives  an  additional 
force  to  the  strength  of  their  passions. 


In  a  nation  indolent  from  the  nature  of  the  cli- 
mate, the  uncertainty  of  the  laws  confirms  and 
increases  men's  indolence  and  stupidity.  In  a 
voluptuous  but  active  nation,  this  uncertainty  oc- 
casions a  multiplicity  of  cabals  and  intrigues^ 
which  spread  distrust  and  diffidence  through  the 
hearts  of  all,  and  dissimulation  and  treachery  are 
the  foundation  of  their  prudence.  In  a  brave  and 
powerful  nation,  this  uncertainty  of  the  laws  is  at 
last  destroyed,  after  many  oscillations  from  liber- 
ty to  slavery,  and  from  slavery  to  liberty  again. 


CRIMES  AND  PUNISHMENTS.  151 


CHAP.  XLII. 

Of  the  Sciences. 

WOULD  you  prevent  crimes  ?  Let  liberty  be 
attended  with  knowledge.  As  knowledge  ex- 
tends, the  disadvantages  which  attend  it  diminish 
and  the  advantages  increase.  A  daring  impostor, 
who  is  always  a  man  of  some  genius,  is  adored 
by  the  ignorant  populace,  and  despised  by  men  of 
understanding.  Knowledge  facilitates  the  com- 
parison of  objects,  by  shewhig  them  in  different 
points  of  view.  When  the  clouds  of  ignorance 
are  dispelled  by  the  radiance  of  knowledge,  au- 
thority trembles,  but  the  force  of  the  laws  remains 
immoveable.  Men  of  enlightened  understanding 
must  necessarily  approve  those  useful  conventions 
wttch  are  the  foundation  of  public  safety  ;  they 
compare  with  the  highest  satisfaction,  the  incon- 
siderable portion  of  liberty  of  which  they  are  de- 
prived with  the  sum  total  sacrificed  by  others  for 
their  security;  observing  that  they  have  only 
given  up  the  pernicious  liberty  of  injuring  their 
fellow-creatures,  they  bless  the  throne,  and  the 

laws  upon  which  it  is  established. 

• 

It  is  false  that  the  sciences  have  always  been 


152  AN  ESSAY  ON 

prejudicial  to  mankind.  When  they  were  so,  the 
evil  was  inevitable.  The  multiplication  of  the  hu- 
man species  on  the  face  of  the  earth  introduced 
war,  the  rudiments  of  arts,  and  the  first  laws, 
which  were  temporary  compacts,  arising  from 
necessity,  and  perishing  with  it.  This  was  the 
first  philosophy,  and  itb  few  elements  were  just, 
•as  indolence  and  want  of  sagacity  in  the  early  in. 
habitants  of  the  world  preserved  them  from  error. 

But  necessities  increasing  with  the  number  of . 
mankind,  stronger  and  more  lasting  impressions 
were  necessary  to  prevent  their  frequent  re- 
lapses into  a  state  of  barbarity,  which  became 
every  day  more  fatal.  The  first  religious  errors, 
which  peopled  the  earth  with  false  divinities,  and 
created  a  world  of  invisible  beings  to  govern  the  ♦ 
visible  creation,  were  of  the  utmost  service  to 
mankind.  The  greatest  benefactors  to  humanity 
were  those  who  dared  to  deceive,  and  lead  pftint 
ignorance  to  the  foot  of  the  altar.  By  present- 
ing to  the  minds  of  the  vulgar  things  out  of  thjC 
reach  of  their  senses,  which  fled  as  they  pursued, 
and  always  eluded  their  grasp  which  as  they  ne- 
ver comprehended,  they  never  despised,  their  dif- 
ferent passions  wore  united,  and  attached  to  a 
smgle  object.  This  was  the  first  transition  of  all 
nations  from  their  savage  state.     Such  was  the 


CRIMES  AND  PUNISHMENTS.  f53 

necessary,  at  id  perhaps  the  only  bond  of  all  socie- 
ties  at  their  first  formation.  I  speak  not  of  the 
chosen  people  of  God,  to  whom  the  most  extra- 
ordinary miracles  and  the  most  signal  favours 
supplied  the  place  of  human  policy.  Bat  aji  it  is 
the  nature  of  error  to  subdivide  itself  ad  injini- 
turn,  -so  the  pretended  knowledge  which  sprung 
from  it,  transformed  mankind  into  a  blind  fanatic 
multitude,  jarring  and  destroying  each  other  in 
the  labyrinth  in  which  they  were  inclosed  :  hence 
it  is  not  wonderful  that  some  sensible  and  philo- 
sophic minds  should  regret  the  ancient  state  of 
barbarity.  This  was  the  first  epocha,  in  which 
knowledge,  or  rather  opinions,  were  fatal. 

The  second  may  be  found  in  the  difficult  and 
terrible  passage  from  error  Xo  truth,  from  dark- 
ness to  light.  The  violent  shock  between  a  mass 
of  errors  useful  to  the  few  and  powerful,  and  the 
truths  so  important  to  the  many  and  the  weak, 
with  the  fermentation  of  passions  excited  on  that 
occasion,  were  productive  of  infinite  evi^s  to  un- 
happy mortals.  In  the  study  of  history,  whose 
principal  periods,  after  certain  intervals,  much  re. 
semble  each  other,  we  frequently  find,  in  the  ne- 
cessary passage  from  the  obsurity  of  ignorance  to 
the  light  of  philosophy,  and  from  tyranny  to  liber- 
ty, it*  natural  consequence,  one  generation  sacri- 

U 


154  AN  ESSAY  ON 

fiped  to  the  happiness  of  the  next.  But  when  this 
flame  is  extinguished,  and  the  world  delivered  from 
its  evils,  truth,  after  a  very  slow  progress,  sits  down 
with  monarchs  on  the  throne,  and  is  worshipped  in 
the  assemblies  of  nations.  Shall  we  then  believe, 
that  light  diffused  among  the  people  is  more  de- 
structive than  darkness,  and  that  the  knowledge  of 
the  relation  of  things  can  ever  be  fatal  to  mankind? 

Ignorance  may  indeed  be  less  fatal  than  a  small 
degree  of  knowledge,  because  this  adds  to  the  evils 
of  ignorance,  the  inevitable  errors  of  a  confined 
view  of  things  on  this  side  the  bounds  of  truth  ; 
but  a  man  of  enlightened  understanding,  appointed 
guardian  of  the  laws,  is  the  greatest  blessing  that 
a  sovereign  can  bestow  on  a  nation.  Such  a 
man  is  accustomed  .to  behold  truth,  and  not  to 
fear  it ;  unacquainted  with  the  greatest  part  of  those 
imaginary  and  insatiable  necessities  which  ^  often 
put  virtue  to  the  proof,  and  accustomed  to  con- 
template mankind  from  the  most  elevated  point  of 
view,  he  considers  the  nation  as  his  family,  and 
his  fellow-citizens  as  brothers ;  the  distance  be- 
tween the  great  and  the  vulgar  appears  to  him  the 
less  as  the  number  of  mankind  he  has  in  view  is 
greater. 

The  philosopher  has  necessities  and  interests 


CRIMES  AND  PUNISHMENTS.  155 

unknown  to  the  vulgar,  and  the  chief  of  these  is 
not  to  belie  in  public  the  principles  he  taught  in 
obscurity,  and  the'  habit  of  loving  virtue  for  its 
own  sake.  A  few  such  philosophers  would  con- 
stitute the  happiness  of  a  nation  ;  which  however 
would  be  but  of  short  duration,  unless  by  good 
laws  the  number  were  so  increased  as  to  lessen 
the  probability  of  an  improper  choice. 


CHAP.  XLIII. 

Of  Magistrates, 

ANOTHER  method  of  preventing  crimes  is, 
to  make  the  observance  of  the  law^s,  and  not  their 
violation,  the  interest  of  the  magistrate. 

The  greater  the  number  of  those  who  constitute 
the  tribunal,  the  less  is  the  danger  of  corruption  ; 
because  the  attempt  will  be  more  difficult,  and 
the  power  and  temptation  of  each  individual  will 
be  proportionably  less.  If  the  sovereign,  by  pomp 
and  the  austerity  of  edicts,  and  by  refusing  to  hear 
the  complaints  of  the  oppressed,  accustom  his 
subjects  to  respect  the  magistrates  more  than  the 
laws,  the  magistrates  will  gain  indeed,  but  it  will 
be  at  the  expense  of  public  and  private  security. 


156  'AN  ESSAY  ON 

CHAP  XLIV.  ^ 


Of  'Rewards. 

YET  another  method  of  preventing  crimes  is, 
to  reward  virtue.  Upon  this  subject  the  laws  of 
all  nations  are  silent.  If  the  rewards  proposed  by 
academies  for  the  discovery  of  useful  truths  have 
increased  out  knowledge,  and  multiplied  good 
books,  is  it  not  probable,  that  rewards,  distribu- 
ted  by  the  beneficent  hand  of  a  sovereign,  would 
also  multiply  virtuous  actions.  The  coin  of  ho- 
nour is  inexhaustible,  and  is  abundantly  fruitful 
in  the  hands  of  a  prince  who  distributes  it  wisely. 


CHAP.  XLV. 


Of  Education, 


i 

FINALLY,  the  most  certain  method  of  pre- 
venting  crimes  is,   to  perfect  the  system  of  educa-_  j 
ion.     But  this  is  an  object  too  vast,  and  exceeds 
my  plan  ;  an  object,  if  I  may  venture  to  declare 


CRIMES  AND  PUNISHMENTS.      ,  137 

it,  which  is  so  intimately  connected  with  the  na- 
ture of  government,  that  it  will  always  remain  a 
barren  spot,  cultivated  only  by  a  few  wise  men. 

A  great  man,  who  is  persecuted  by  that  world 
he  hath  enlightened,  and  to  whom  we  are  indebt- 
ed for  many  important  truths,  hath  most  amply 
detailed  the  principal  maxims  of  useful  education. 
This  chiefly  consists  in  presenting  to  the  mind  a 
small  number  of  select  objects,  in  substituting  the 
originals  for  the  copies  both  of  physical  and  moral 
phenomena,  in  leading  the  pupil  to  virtue  by  the 
easy  road  of  sentiment,  and  in  withholding  him 
from  evil  by  the  infallible  power  of  necessary  in- 
conveniences, rather  than  by  command,  which  on- 
ly obtains  a  counterfeit  and  momentary  obedience. 


ro8  AN  ESSAY  OK 


CHAP.  XLVI. 


Of  Pardons* 

AS  punishments  become  more  mild,  clemency 
and  pardon  are  less  necessary.  Happy  the  nation 
in  which  they  will  be  considered  as  dangerous  ! 
Clemency,  which  has  often  been  deemed  a  suffi- 
cient  substitute  for  every  other  virtue  in  sove- 
reigns,  should  be  excluded  in  a  perfect  legislation, 
where  punishments  are  mild,  and  the  proceedings 
in  criminal  cases  regular  and  expeditious.  This 
truth  will  seem  cruel  to  those  who  live  in  countries 
where,  from  the  absurdity  of  the  laws  and  the  se- 
verity of  punishments,  pardons  and  the  clemency 
of  the  prince  are  necessary.  It  is  indeed  one  of 
the  noblest  prerogatives  of  the  throne,  but,  at  the 
same  time,  a  tacit  disapprobation  of  the  laws. 
Clemency  is  a  virtue  which  belongs  to  the  legisla- 
tor, and  not  to  the  executor  of  the  laws ;  a  virtue 
which  ought  to  shine  in  the  code,  and  not  in  pri- 
vate  judgment.  To  shew  mankind  that  crimes 
are  sometimes  pardoned,  and  that  punishment  is 
not  the  necessary  consequence,  is  to  nourish  the 
flattering  hope  of  impunity,  and  is  the  cause  of 
their  considering  every  punishment  inflicted  as 


CRIMES  AND  PUNISHMENTSv  151? 

\  an  act  of  injustice  and  oppression.  The  prince  in 
pardoning  gives  up  the  public  security  in  favour 
of  an  individual,  and,  by  his  ill-judged  benevo- 
lence, proclaims  a  public  act  of  impunity.  Let, 
then,  the  executors  of  the  laws  be  inexorable,  but 
let  the  legislator  be  tender,  indulgent,  and  hu- 
mane. He  is  a  wise  architect  who  erects  his  edi- 
fice on  the  foundation  of  self-love,  and  contrives 
that  the  interest  of  the  public  shall  be  the  interest 
of  each  individual,  who  is  not  obliged,  by  parti- 
cular laws  and  irregular  proceedings,  to  seperate 
the  public  good  from  that  of  individuals,  and 
erect  the  image  of  public  felicity  on  the  basis  of 
fear  and  distrust ;  but,  like  a  wise  philosopher,  he 
will  permit  his  bretheren  to  enjoy  in  quiet  that 
small  portion  of  happiness,  which  the  immense 
system,  established  by  the  first  cause,  permits 
them  to  taste  on  this  earth,  ^  which  is  but  a  point 
in  the  universe. .  % 

A  small  crime  is  sometimes  pardoned  if  the 
person  offended  chooses  to  forgive  the  offender. 
This  may  be  an  act  of  good  nature  and  humanity, 
but  it  is  contrary  to  the  good  of  the  public :  for 
although  a  private  citizen  may  dispense  with  sa- 
tisfaction for  the  injury  he  has  received,  he  can- 
not remove  the  necessity  of  example.  The  right 
of  punishing  belongs  not  to  any  individual  in 


16©  AN  ESSAY  ON,  &c. 

particular,  but  to  society  in  general,  or  the  sove-^ 
reigu.  He  may  renounce  his  own  portion  of  this 
right,  but  cannot  give  up  that  of  others. 


CHAP.  XL VII. 


Conclusion. 


I  CONCLUDE  with  this  reflection,  that  the 
severity  of  punishments  ought  to  be  in  proportiou 
to  the  state  of  the  nation.  Among  a  people  hard- 
ly yet  emerged  from  barbarity,  they  should  be 
most  severe,  as  strong  impressions  are  required; 
but,  in  proportion  as  the  minds  of  men  become 
softened  by  their  intercourse  in  society,  the  seve- 
rity of  punishments  should  be  diminished,  if  it 
be  intended  that  the  necessary  relation  between 
the  object  and  the  sensation  should  be  maintained. 

From  what  I  have  written  results  the  follow- 
ing general  theorem,  of  considerable  utility, 
though  not  conformable  to  custom,  the  common 
legislator  of  nations : 

That  a  punishment  may  not  be  an  act  of  vio- 
lence, of  one  ^  or  of  many,  against  a  private  mem^ 
ber  of  society,  it  should  be  public,  immediate,  and 
necessary ^  the  least  possible  in  the  case  given,  pro- 
portioned to  the  crime ^  and  determined  by  the  laws^ 


A  COMMENTARY 

ON  THE  ESSAY  ON 

CRIMES  •>lJV/>  PUJ^ISHMEJK'TS. 


CHAP.  I. 

llie  Circmtistances  that  occasioned  this  Commentary. 

MY  mind  was  full  of  reflexions  arising 
from  the  perusal  of  the  little  work  on  crimes  and 
punishments,  which  is  in  moral  science,  what  the 
few  remedies  capable  of  alleviating  our  bodily- 
complaints  are  in  medicine.  I  flattered  myself  that 
this  work  would  soften  what  remained  of  barba- 
rism in  the  criminal  jurisprudence  of  a  great  many- 
nations  ;  I  hoped  for  some  reformation  in  human 
nature  itself ;  when  I  was  informed  that  a  girl  of 
eighteen  years  of  age,  handsome,  possessed  of 
useful  talents,  and  of  a  very  respectable  family, 
had  just  been  hung  in  one  of  the  provinces. 

Her  crime  was,  having  yielded  to  illicit  love, 
and  in  afterwards  abandoning  her  child,  the  fruit 
of  the  connexion.  This  unhappy  girl,  flying 
from  her  parents  house,  was  taken  in  labour,  and 

X 


162  A  COMMENTARY  ON 

delivered,  alone  and  without  assistance,  near  a 
brook.  The  feeling  of  shame,  which  in  the  sex 
is  a  powerful  passion,  gave  her  strength  to  return 
to  the  house  of  her  father,  and  to  conceal  her  si- 
tuation. She  left  her  child  exposed  ;  it  was  found 
the  next  dav  ;  the  mother  ascertained ;  condemn- 
ed  to  death,  and  executed. 

The  first  fault  of  this  girl  should  have  been 
considered  by  her  family  as  a  family  secret,  or 
met  with  protection  from  the  law ;  because- the 
seducer  should  be  bound  to  repair  the  evil  he  had 
done ;  because  weakness  has  a  claim  to  indulg- 
ence ;  because  every  feeling  is  in  favor  of  a  woman 
whose  concealed  pregnancy  often  exposes  her  life, 
at  the  same  time,  that  discovery  of  her  conditiou 
would  destroy  her  reputation ;  and,  because  the 
difficulty  of  providing  for  the  support  of  her  child 
is  a  very  great  additional  misfortune. 

Her  second  fault  was  more  criminal ;  she  aban- 
doned the  fruit  of  her  weakness,  and  exposed  it  to 
the  risk  of  perishing. 

But  because  a  child  died,  was  it  obsoiutely  ne- 
cessary to  destroy  the  mother  ?  She  did  not  murder 
it  ;-she  flattered  herself  that  some  passenger  would 
have  compassion  for  an  innocent  being ;  she  might 


CRIMES  AND  PUNISHMENTS  16c 

even  have  had  an  intention  of  returning  with  the 
view  of  finding  her  child,  and  affording  it  every 
necessary  assistance.  This  feeling,  too,  is  so  natu- 
ral, that  its  existence  in  the  heart  of  a  mother  ought 
to  be  presumed.  I  know  the  law  is  positive  against 
a  woman  under  the  circumstances,  above  relat- 
ed;  in  the  province  to  which  I  alluded;  but  at  the 
same  time  is  not  this  law  unjii'^t,  mhuman,  and 
pernicious?  l/njusty  bee  dust  it  makes  no  distinction 
between  the  woman  who  murders,  and  she  who 
abandons  her  child  ;  inhuman ,  because  it  cruelly 
inflicts  the  punishment  of  death  on  an  unfortunate 
being,  whose  only  crime  is  weakness  and  anxiety 
to  conceal  her  miserable  situation  ;  pernicious^  be- 
cause it  forcibly  tears  from  society  a  fellow  being 
capable  of  adding  to  the  subjects  of  the  state,  and 
that  toQ,  in  a  province  where  they  are  sensible  of 
the  want  of  inhabitants.  Charity  has  not  as  yet 
provided,  in  that  province,  houses  of  reception, 
where  children  who  are  exposed  may  receive  ne- 
cessary care  :  where  charity  is  wanting,'  law  is 
always  cruel.  It  would  certainly  be  better  to 
prevent  ^htst  unhappy  occurrences,  which  happen 
but  too  often,  than  simply  to  rest  satisfied  with 
punishing  them.  The  real.object  of  jurisprudence 
is  to  prevent  the  commission  of  crimes,  not  to  pun- 
ish with  death  the  weaker  sex,  especially  when 
it  is  evident  that  their  faults  are  unaccompanied 


364  '  A  COMMENTARY  ON 

with  malice,   and  who  are  more  than  adequately 
punished  by  the  feelings  of  their  own  hearts. 

Furnish,  as  far  as  possible,  to  those  who  may 
be  tempted  to  do  evil^  the  means  of  avoiding  it^ 
and  you  will  have  fewer  criminals  to  punish. 


CHAP.  II. 

Of  Punishments. 

THE  unfortunate  occurrence,  and  the  severe 
law,  with  which  I  have  been  so  struck,  induced 
me  to  cast  my  eyes  on  the  criminal  code  of  nations. 
The  humane  author  of  the  "  Essay  on  Crimes  and 
Punishments  ^'  had  but  too  much  reason  to  com- 
plain, that  the  latter  was,  too  frequently^  dispro- 
portioned  to  the  former,  and  sometimes  even  de- 
trimental to  the  state  they  were  intended  to  serve. 

Ingenious  punishments,  to  imagine  which  the 
human  mind  seems  to  have  exhausted  itself  in 
order  to  render  death  terrible,  seem  rather  the 
inventions  of  tyranny  than  of  justice. 

The  punishment  of  the  wheels  was  first  intro- 
duced into  Germany  during  times  of  anarchy. 


CRIMES  AND  PUXISIBIEXTS.  165 

when  those  who  usurped  regal  power  wished  to 
terrify,  by  the  studied  preparation  of  unheard-of 
torment,  whosoever  should  dare  to  make  an  at- 
tempt upon  their  authority.  In  England,  they 
ripped  up  the  belh'^  of  a  man  convicted  of  high 
treason^  tore  out  his  heart,  dashed  it  in  his  face, 
and  then  threw  it  upon  the  fire.  And  what,  very 
frequently,  constituted  the  crime  of  high  treason  ? 
During  the  civil  wars,  a  faithful  adherence  to  an 
unfortunate  monarch ;  and,  sometimes,  the  expres- 
sion of  an  opinion  upon  the  doubtful  rights  of  a 
conqueror.  Time^  however,  rendered  their  man- 
ners milder ;  they  continue  notwithstanding,  to 
tear  out  the  heart,  but  it  is  always  after  the  death 
of  the  criminal.  The  apparatus  death  is  dreadful ; 
but  the  death  itself  is  easv,  if  death  can  ever  be 
said  to  be  easy. 


tm  A  COMMENTARY  ON" 


CHAP.  III. 

OJ^  the  Punishments  of  Heretic^, 

THE  denunciation  of  the  punishment  of  death 
agaiinst  those  who  differed  from  the  established 
church  in  certain  points  of  doctrine,  was  peculiarly 
the  act  of  tyranny.  No  christian  emperor,  before 
the  time  of  the  tyrant  Maximus,  ever  thought  of 
condemning  any  man  to  punishment,  merely  on  ac- 
count of  controversial  points.  It  is  true,  that  it 
was  two  Spanish  bishops  who  pursued  to  death 
the  Priscillianists  under  Maximus ;  but  it  is  also 
not  the  less  true,  that  ^his  tyrant  was  willing  to 
gratify  the  ruling  party  by  shedding  the  blood  of 
heretics.  Barbarity  and  justice  were  viewed  by 
him  with  equal  indifference.  Jealous  of  Theodosi- 
us,  who  was  also  a  Spaniard,  he  flattered  himself 
with  the  idea  of  depriving  him  of  the  empire  of  the 
east,  having  already  usurped  that  of  the  west.  The- 
odosius  was  detested  for  his  cruelties ;  but  he  un- 
derstood the  art  of  gaining  to  his  party  the  heads  of 
the  church.  Maximus  was  desirous,  by  displaying 
the  same  zeal,  of  attaching  the  Spanish  bishops  to 
his  faction.  He  flattered  both  the  old  and  the 
new   religion ;    he   was   a   man  as   treacherous 


DUIMES  AND  PUNISHMEN  lb.  107 

as  inhuman,  as  indeed  were  all  those,  who,  at  this 
period,  aspired  to  or  obtained  the  empire.  The 
govcnment  of  this  vast  portion  of  the  world  was 
similar  to  that  of  Algiers  at  the  present  day.  The 
soldiery  created  and  dethroned  the  emperors ;  they 
selected  them  often  from  among  the  natives  of  thtir 
country  regarded  as  barbarous.  Theodosius  op- 
posed to  his  antagonist  other  barbarians  from 
Seythia  :  it  was  he  who  filled  the  armies  with 
Goths,  and  who  raised  up  Alaric  the  conqueror  of 
Rome.  In  this  horrible  state  of  confusion,  the 
empire  belonged  to  him  who  could  strengthen 
his  party  most  effectually,  by  any  and  every  means 
in  his  power. 

Maximus,  just  had  procured  the  assassination, 
at  Lyons,  of  Gratian,  the  colleague  of  Theodosius; 
and  meditated  the  destruction  of  Valentinian  the 
2d.  who,  while  yet  a  child  had  been  nominated 
as  the  successor  of  Gratian  at  Rome.  He  assem- 
bled at  Treves  a  powerful  army  composed  of 
Gauls  and  Germans.  He  was  also  leveying  troops 
in  Spain,  when  two  Spanish  bishops  Idacio  and 
Ithacus  or  Itacius,  men  who  possessed  much  in- 
fluence, came  and  demanded  of  him  the  blood  of 
Priscillian  and  of  all  his  adherents,  who  were  per- 
suaded  that  souls  are  emanations  from  God ;  that  the 
trinity  does  not  include  three  Hypostases ;  and 


16S  A  COMMENTARY   ON 

who,  moreover,  carried  their  sacrilegious  doings  so 
far  as  actually  to  fast  on  Sundays.  Maximus,  half 
pagan,halfchristian,was  soon  aware  of  the  enormi- 
ty of  these  crimes.  The  holy  bishops,  Idacio  and 
Itacius,  also  obtained  permission  to  torture  Pris- 
cSlian  and  his  adherent  s  before  they  put  them  to 
death.  They  were  both  present  at  the  executions 
in  order  to  sec  that  all  things  were  regularly  con- 
ducted ;  and  they  returned  home  praising  God, 
and  numbering  Maximus,  the  defender  of  the 
faith,  among  the  saints.  But  Maximus  being  de- 
feated by  Theodosius,  and  afterwards  murdered 
at  the  feet  of  his  vanquisher,  had  not  the  honor  to 
be  canonized.  It  is  proper,  at  the  same  time,  to 
remark,  that  St.  Martin,  bishop  of  Tours,  who 
was  a  truly  good  man,  solicited  the  pardon  of 
Priscillian ;  but  being  himself  accused  of  being  a 
heretic,  he  returned  to  Tours  for  fear  of  being  put 
to  the  torture  at  Trevis, 

As  for  Priscillian,  he  had  the  consolation,  after 
being  hanged  however,  of  being  looked  upon  by 
his  followers  as  a  Martyr.  They  celebrated  the 
day  of  his  canonization,  and  they  would  probably 
do  so  to  this  day,  if  there  were  any  Priscillianists 
remaining  in  the  world. 

This  example  made  the  whole  church  tremble , 


T>RIMES  AND  PUNISHMENTS.  I§9 

but,  soon  after,  it  Was  not  only  successfully  im- 
itate d,  but  even  surpassed.  Priscillianibts  had  pre- 
shed  by  the  sword,  by  the  halter,  and  by  stoning 
to  death :  a  young  lady  of  quality,  suspected^  of 
having  fasted  on  a  sunday,  vi^as  only  stoned  to 
death  at  Bordeaux.  These  punishments,  however, 
appeared  too  miid ;  it  having  been  duly  proved, 
that  God  required  heretics  to  be  roasted  alive  by  a 
slow  fire.  The  convincing  argument  offt^red  in 
support  of  this  opinion  was,  that  it  was  in  that 
manner  that  God  himself  punishes  them  in  another 
world  ;  to  which  they  added  that  all  princes,  and 
all  representatives  of  princes,  including  therein  all 
petty  magistrates,  were  the  images  of  God  in  this 
sublunarv  world ! 

In  pursuance  of  this  principle  they  every  where 
burned  all  witches  and  sorcerers ;  such  personages 
being  manifestly  under  the  empire  of  the  devil ; 
and  extended  the  same  charity  to  all  heterodox 
christians,  who  were  deemud  more  criminal  and 
dangerous  than  even  sorcerers  themselves. 

The  precise  nature  of  the  heresy,  with  which 
the  priests  whom  king  Robert  (the  son  of  Hugh,) 
and  Constance  his  wife  ordered  to  be  burned  in 
their  presence  at  Orleans,  in  1022,  were  con- 
taminated, is  not  known.     How  indeed  it  should 

Y 


'm  A  COMMENTARY  ON 

be  known,  there  being  at. that  thne  none  but  some 
few  scholars  and  monks  who  could  read,  is  not 
easy  to  determine.  This  fact,  however,  is  well 
established,  that  Robert  and  his  wife  satiated  their 
eyes  with  the  view  of  this  most  abominable  spec- 
tacle— One  of  these  sectaries  had  been  confessor 
to  Constance,  who  thought,  that  she  could  in  no 
way  better  repair  the  misfortune  of  having  con- 
fessed herself  to  a  heretic,  than  by  seeing  him 
devoured  by  the  flames.  Custom  ripens  into  law : 
from  that  period  down  to  the  present  day,  the 
church  has  continued  to  burn  those  who  were, 
or  who  at  leapt  appeared  to  be,  blackened  by  the 
crime  of  erroneous  opmion. 


CHAP.  IV. 


Of  the  extirpation  of  Heresies. 

WE  ought,  it  appears  to  me,  in  matters  of 
heresy,  to  distmguish  between  opinion  midjaction. 
From  the  first  ages  of  Christianity,  opinions  have 
been  divided  on  the  subject  of  religious  duty. 
The  christians  of  Alexandria  did  not  agree,  oo 
many  joints,  with  those  of  Antioch.  The  Ach- 
aians  were  at  variance  with  the  Asiatics.  This 
diversity  of  opinion  has  existed  in^every  age,  and, 


CRIMES  AND  PUNISHMENTS.  ITi 

in  all  probability,  will  continue  forever.  Jesus 
Christ,  who  alone  could  have  united  all  the  faith- 
ful in  one  opinion,  did  not  do  so ;  it  is  fair,  there- 
fore, to  presume,  that  such  was  not  his  intention ; 
but,  that  his  design  was  rather  to  exercise  all  his 
churches  in  performances  of  charity,  and  acts  of 
indulgence  towards  each  other,  by  permitting  the 
establishment  of  different  systems.  Which,  however, 
should  all  unite  in  acknowledging  him  as  their 
Lord  and  Master.  These  sects,  for  a  long  period 
of  time,  either  tolerated  by  the  Roman  emperors, 
or,  concealed  in  quiet  obscurity,  were  unable  to 
persecute  each  other,  as  they  were  all  io  equal  sub- 
jection to  the  Roman  magistrates  ;  they  only  pos- 
sessed  the  right  of  disputation.  When  persecuted 
by  the  magistrates,  they  all  claimed  the  privilege 
of  nature  ;  *'  suffer  us,  said  they,  to  worship  our 
God  in  peace ;  do  not  deny  to  us,  the  liberty  you 
grant  to  the  Jews."  Every  sect  at  the  present 
day  has  a  right  to  hold  the  same  language  to  their 
oppressors.  They  can  say,  with  justice,  to  those 
who  have  granted  privileges  to  the  Jews  ;  *** Treat 
us,  at  least,  as  you  treat  these  children  of  Jacob  ; 
let  us,  like  them,  worship  God  according  to  the 
dictates  of  our  own  consciences  ;  our  opinions  will 
injure  your  kingdonm  no  more  than  Judaism. 
You  tolerate  the  enemies  of  Jesus  Christ;  tolerate, 
at  least,  us,  who  are  his  worshipers,  and  who  dif- 


172  A  COMMENTARY  ON 

fer  from  yourselves,  only  in  some  trifling  theolo- 
^cal  subtilties — Do  not  deprive  yourselves  of 
useful  subjects.  It  is  of  importance  to  you  to  possess 
our  exertions  in  your  navy,  in  your  manufactories, 
and  in  the  cultivation  of  *the  soil ;  and,  it  is  of 
trifling  import  to  you  that  we  differ  in  some  few 
articles  of  faith.  It  is  our  labor  that  you  stand  in 
need  of,  and  we  do  not  wish  you  to  adopt  our 
catechism/' 

Faction  is  a  very  diflFerent  thing.     It  always 
happens,  and  that  necessarily  too,  that  a  persecu- 
ted sect  degenerates  into  a  faction.  The  oppress- 
ed   naturally  unite    and   encourage  each  other. 
They  are  more  industrious  in  the  work  of  strength- 
ening their  .party,  than  the  reigning  sect  are  in  the 
business  of  extermination.     They  crush  or  are 
crushed.  Precisely  so  it  happened  (after  the  per- 
secution set  on  foot  in  the. year  303  by  Galerius) 
during,  the  two  last  years  of  the  reign  of  Diocle- 
sian.     The   christians  having  been  favoured   by 
Diocle&ian  for  a  period  of  eighteen   years,  were 
too  numerous,  and  too  rich  to  be  exterminated  : 
they  attached  themselves  to  Constantius  Chlorus, 
they  fought  for  his  son  Constantine,  and  an  en- 
tire revolution  in  the  empire  was  the  consequence. 

Trifling  events  may  be  compared  with  those 


CRIMES  \ND  PUNISHMENTS.  U3 

that  are  great,  when  they  are  directed  by  the  same 
spirit.  Similar  revolutions  took  place  in  Holland, 
Scotland,  and  Switzerland.  When  Ferdinand  and 
Isabella  drove  out  of  Spain  the  Jews,  who  were  set- 
tled there  before  the  then  reigning  house,  before 
the  Moors,  and  even  before  the  Carthaginians, 
the  Jews,  if  they  had  been  as  warlike  as  they  were 
rich,  and  could  have  made  arrangements  with  the 
Arabs,  might  easily  have  brought  about  a  revolu- 
tion in  Spain.  In  short,  no  sect  ever  succeeded  in 
producing  a  change  in  the  government  of  a  coun- 
try until  despair  furnished  them  with  the  means. 
Mahomet  himself  succeeded,  simply  because  he 
was  driven  from  Mecca,  and  a  reward  offered  for 
his  head. 

Would  you  prevent  then  any  sect  from  over- 
turning a  state-exercise  toleration  :  imitate  the 
wise  conduct  by  which  England,  Germany,  and 
Scotland  are  regulated.  Government  has  but  one 
choice  to  make  with  regard  to  the  mode  of  treating 
a  new  sect ;  that  of  putting  to  death,  without 
mercy,  the  chiefs  of  the  sect^  and  all  their  adhe. 
rents,  men,  women,  and  children  ;  or,  that  of  to- 
lerating them  when  the  sect  is  numerous.  The 
first  method  is  that  of  a  monster  ;  the  other  that 
of  a  sage.  Bind  every  subject  to  the  state  with  the 
chains  of  his  own  interest.     Let  the  Quaker  and 


174  A  COMMENT  ART?  ON 

the  Turk  find  their  advantage  in  living  under  th^ 
protection  of  your  laws.  Religion  is  a  matter 
between  God  and  man ;  the  performance  of  civil 
duties  a  question  between  Government  and  the 
people. 


CHAF.  V 


Of  Blasphemy  and  Frofanation. 

LOUIS  the  9th.  king  of  France,  who,  for  his 
virtue,  was  numbered  among  the  saints,  made  a 
law  against  blasphemers.  He  condemned  them 
to  a  new  species  of  punishment ;  that  of  having  the 
tongue  pierced  with  a  red  hot  iron.  This  was  a 
kind  of  lex  talionis ;  the  member  that  had  sinned 
suffered  the  whole  punishment.  But  it  was  very- 
difficult  to  determine  what  was  really  blasphemy. 
In  the  transports  of  rage,  in  the  excitement  of  joy^ 
even  in  common  conversation,  expressions  often 
escape  from  a  man,  which,  strictly  speaking,  are 
merely  expletives  ;  such  as  the  Selah  and  the  Fah 
of  the  Hebrews  ;  the  Pol  and  the  JEdepol  of  the 
Latins ;  andthej&f^  Deosimmor tales ^  anexpression 
made  use  of  every  moment  without  the  least  in- 
tention of  swearing  by  the  immonai  Gods. 


CMMES  AND  PUNISHMENTS.  175 

The  words  called  oaths  and  blasphemy,  usually 
consist  of  vague  terms,  which  may  be  variously 
interpreted.  The  law  punishing  those  making 
use  of  them,  seems  to  have  been  taken  from  the 
Jewish  commandment,  which  says  *'  Jhou  shalt 
not  take  the  name  of  God  in  vain.^^  The  best  in- 
terpreters think  that  this  law  has  relation  only  to 
perjury.  And  there  is  great  reason  to  believe 
they  are  right,  as  the  word  shave  in  the  original, 
which  is  translated  in  vaiuy  strictly  speaking  sig- 
nifies j&^r/wry.  Now  who. can  discover  perjury, 
in  the  words  cadedis  sangbleuy  ventrebleu^  corbleu. 

The  Jews  swore  by  the  life  of  God.  *^  as  the 
Lord  liveth,^^  It  was  a  common  phrase ;  so  that 
the  only  thing  forbidden,  was,  lying,  at  the  time 
that  God  was  called  upon  to  witness  the  truth  of 
what  the  party  said.  .' 

'  Philip  Augustus,  in  1181,  condemned  such  of 
the  nobility  of  his  kingdom  as  should  pronouce  the 
words  telebleui  ventrebleu^  corbleu,  sangbleuy  to 
pay  a  fine,  and  ordered  commoners  to  be  drowned. 
The  first  part  of  this  ordinance  seems  puerile,  the 
second  was  abominable.  It  was  an  outrage  on 
human  nature  to  drown  a  commoner  for  the  fault 
which  a  nobleman  expiated  by  paying  a  few  pence 
of  the  money  of  those  times.  The  natural  conse- 
quence was,  that  this  extraodinary  law  remained 


tr6:  A  COMMENTARY  ON 

unexecuted,  as  indeed  did  many  other  laws,  par*' 
ticularly  during  the  time  that  the  king  was  un- 
der a  sentence  of  excommunication,  and  his  king- 
dom laid  under  an  interdict  by  Pope  C  destine 
the  3d.  St.  Louis,  inflamed  with  holy  zeal,  gave 
orders,  that  whosoever  should  pronounce  the  in- 
decent words  we  have  mentioned,  should  have, 
either  his  tongue  bored,  or  his  upper  lip  cut  off. 
But  a  respectable  citizen  of  Paris  having  lost  his 
tongue  in  consequence  of  the  punishment,  com- 
plained to  Pope  Innocent  the  IV,  who  represented 
with  decision  to  the  king,  that  the  punishment 
was  too  severe  for  the  crime.  The  king  for  the 
future  desisted  from  this  severity.  Happy  had  it 
been  for  mankind/ if  tRe  popes  had  never  affected 
any  other  superiority  over  kings. 

The  ordinance  of  Louis  the  14th.  of  the  year 
1666,  directs :  ^'  that  whosoever  shall  be  convicted 
of  having  sworn  by,  and  blasphemed  the  holy  name 
of  God,  of  his  most  holy  Mother,  or  of  his  Saints, 
shall,  for  the  first  offence,  pay  a  fine  ;  for  the 
second,  third,  and  fourth  offence,  a  double,  triple 
and  quadruple  fine  ;  for  the  fifth  offence,  be  put 
in  the  stocks ;  for  the  sixth,  shall  stand  in  thp 
pillory,  and  have  the  upper  lip  cut  off  j  and  for 
the  seventh  offence  have  the  tongue  entirely  cut 
out.'^ 


CHIMES  AND  PUNISHMENTS.  177 

This  law  appears  to  be  wise  and  humane ;  it 
inflicts  a  severe  punishment  on  a  sevenfold  repe- 
tition of  the  crime,  a  thing  scarcely  to  be  antici- 
pated with  regard  to  those  more  daring  profana- 
tions designated  by  the  term  of  sacrilege.  Our 
compilations  of  criminal  jurisprudence,  where 
decisions  are  reported,  which,  however  we  are  not 
to  consider  as  lawsy  make  mention  only  of  the 
crime  of  church-robbery  :  and  there  is  no  positive 
law  on  this  subject  condemning  the  criminal  to 
the  flames.  The  laws  also  are  silent  on  the  subject 
of  public  impiety  ;  either,  because  such  folly  was 
not  anticipated,  or,  that  there  exists  great  difli- 
culty  in  specifying  the  acts  necessary  to  constitute 
the  off*ence.  This  crime  is  therefore  left,  as  far 
as  regards  punishment,  to  the  discretion  of  the 
judges.  Justice,  however,  should  not  leave  any 
offence  undefined,  or  its  punishment  arbitrary. 

In  cases  that  occur  so  rarely,  what,  it  may  be 
asked,  is  the  proper  course  for  a  judge  to  pursue  ? 
He  ought  to  consider  the  age  of  the  offender,  the 
nature  of  his  oflfence,  the  degree  of  evil  disposition 
and  obstmacy  manifested,  the  public  scandal  to 
which  it  may  have  given  rise,  and,  particularly, 
whether  or  no  there  exists  a  necessity  for  a  ter- 
rible public  example.  Fro  qualitate  persona 
proque  rel  conditione  et  temporis  et  oe talis  etsexus, 

Z 


178  A  COMMENTARY  OjS 

vel  severius  vel  clementius  statuendem^^  And  if 
the  law  does  not  expressly  provide  the  punishment 
of  death  for  the  crime — What  Judge  can  deem 
himself  bound  to  authorise  its  infliction?  If  there 
must  be  a  punishment;  if  the  law  is  silent ;  a  judge' 
should,  without  hesitation,  award  the  mildest  pun- 
ishment in  his  power — Because  he  himself  is  a 
man. 

Sacrilegious  profanations  are  never  committed, 
except  by  young  and  dissipated  men  :  would  you 
punish  them  for  this  crime  as  severely  as  if  they 
had  committed  murder  on  a  brother  ?  Their  youth 
itself  pleads  in  their  favor.  They  can  not  even 
dispose  of  their  property  ;  because  they  are  sup- 
posed to  want  the  maturity  of  judgment  necessary 
to  anticipate  the  probable  consequences  of  an  im- 
prudent transaction  ;  it  is,  therefore,  rieasonable  to 
suppose,  that  they  cannot  properly  estimate  the 
results  of  an  impious  sally.  • 

Would  you  treat  a  dissolute  young  man,  who, 
in  a  frolic,  had  profaned,  not  stolen,  a  sacred 
image,  with  the  severity  that  you  treated  a  Brinvil" 
liers^  who  poisoned  her  father  and  all  his  family  ? 

There  is  no  existing  law  that  condemns  the 

*  Tit.  Xm.  Ad  legem  Jullam. 


I  CRIMES  AND  PUNISHMENTS  179 

unhappy  wretch — You  create  one  in  order  to  sub- 
ject him  to  the  severest  punishment.  He  deserves 
an  exemplary  chastisement ;  but  does  he  merit 
tortures,  at  the  thought  of  which  nature  shudders, 
^  in  addition  to  a  violent  death  ? 

But  he  has  sinned  against  God  ;  true,  he  has, 
most  grievously.  Deal  with  him,  then,  as  God 
would  deal.  If  penitent ; — God  forgives  him. 
Cause  him,  therefore,  bitterly  to  repent ;  but,  at 
the  same  time,  forgive  him  also. 

Your  own  illustrious  Montesquieu  has  said, 
"  Our  duty  is,  to  reverence  God,  not  to  avenge 
him."  Let  us  consider  well  his  words :  They  do 
not  mean  that  we  are  to  neglect  the  mainte- 
nance of  public  decorum ;  but,  as  the  judicious 
author  of  the  "Essay  on  Crimes  and  Punish- 
ments" observes,  they  demonstrate  the  absurdity 
of  the  attempts  of  an  insect,  to  avenge  the  insult- 
ed majesty  of  the  arbitrator  of  the  universe.  Nei- 
ther the  magistrate  of  a  petty  village,  nor  the 
judge  of  an  imperial  city,  is  a  Moses  or  a  Joshua. 


'i^  \  commh;ntary  o?^ 


CHAP.  VI. 


Of  the  indulgence  of  the  Bomans  in  Matters  of  Re^ 


ligion. 


THROUGHOUT  Europe,  the  conversation  of 
enlightened  men  has  often  turned  upon  the  sur- 
prising contrast  existing  between  the  Roman  laws, 
and  the  barbarous  institutions  by  which  they  were 
succeeded  and  obscured,  as  the  ruins  of  a  splendid 
city  are  hidden  by  accumulating  rubbish. 

Doubtless  the  Roman  Senate  felt  as  profound 
a  veneration  for  the  Supreme  Being  as  we  do ; 
and  held  the  secondary  immortal  gods,  who 
were  dependent  upon  their  eternal  ruler,  in  as 
much  consideration  as  we  do  the  saints.  Ab  Jove 
fiuncipmm,  was  the  common  form  of  invocation. 
Pliny*  in  his  panegyric  on  Trajan,  begins  by 
averring,  that  the  Romans  never  omitted  to  in- 
voke the  Deity  when  they  entered  upon  business, 
or  at  the  commencement  of  their  speeches.  Ci- 
cero and  Livy  confirm  the  assertion  :  No  people 
were  ever  more  religious ;  bu  they  were  also  too 
wise,  and  too  magnanimous  to   condescend  to 

*  Bene  ac  sapienter  patres  conscripti  majores  instituerunt  ut  renim 
agendaruiji  ita  dicendi  initium  a  precationibys  cepere,  &c. 


CRIMES  AND  PLT^^SHMF:NTS.  181 

punish  idle  language,  or  philosophical  opinions. 
They  were  incapable  of  inflicting  a  barbarous  pun- 
ishment on  those,  who,  with  Cicero,  himself  an 
augur,  had  no  faith  in  auguries  ;  still  less  did  they 
persecute  those,  (and  among  others  Julius  Caesar, 
who  made  the  assertion  before  the  assembled  se- 
nate,) who  said,  that  the  gods  do  not  punish  men 
after  death. 

It  has  been  often  remarked,  that  the  senate  per- 
mitted the  chorus  in  the  Troades,  to  utter  the 
following  sentiments  before  the  audience,  in  the 
public  theatre  at  Rome. 

"  There  is  nothing  to  be  looked  for  after  deaths 
and  death  itself  is  nothing.  Thou  askest^  in  what 
place  the  dead  remain  ? — where  they  remained  be- 
fore they  had  existence,'^'' 

If  there  ever  was  profanity,  surely  this  is  it ; 
and,  from  Ennius  to  Ausonius,  all  is  profanity, 
notwithstanding  the  respect  generally  paid  to  pub- 
lic worship.  Why  were  these  things  disregarded 
by  the  Roman  senate  ?  Simply  because  they  did 
not  interfere  with  the  government  of  the  state ; 
and  did  no  injury  whatever  to  any  institution,  or 
religious  ceremony.  The  police  of  the  Romans 
was,  excellent;  and,  notwithstanding  what  we 


J82  A  COMMENTARY  ON 

have  just  related,  they  continued  to  be  absolute 
masters  of  the  fairest  porticJn  of  the  world  till  the 
reign  of  Theodosius  the  second. 

The  maxim  of  the  senate  M'as,  Deorum  offensae 
Diis  cur  a : — -that  offences  committed  against  the 
gods  concerned  the  gods  alone.  The  senators 
themselves  being  at  the  head  of  religious  affairs, 
were  under  no  apprehensions  that  they  might  be 
forced  by  a  convocation  of  priests  to  administef 
to  their  vengeance,  under  the  pretext  that  the  Al- 
mighty was  to  be  avenged.  They  never  said, 
**  let  us  tear  the  impious  to  pieces,  lest  we  be 
deemed  impious  ourselves — let  us  prove  to  the 
priesthood  by  our  cruelty,  that  we  are  not  less  re- 
ligious  than  they.'' 

Yes — but  our  religion  is  more  holy  than  that  of 
the  Romans — Impiety  is,  therefore,  a  much  greater 
crime  with  us  than  with  them :  granted--i-God  will 
punish  it ; — the  duty  of  man,  is  to  punish  the  cri- 
minality of  impiety  when  it  assumes  the  shape  of 
public  disorder.  But,  if,  in  committing  the  act  of 
impiety,  not  even  a  handkerchief  has  been  stolen 
by  the  offender ;  if  he  has  not  doite  the  smallest 
injuiy  to  any  one ;  if  the  rites  of  religion  have 
not  been  disturbed  ;  shall  we  punish  {I  repeat)  the 
man  committing  such  an  act  of  impiety  as  we 


OUIMES  AND  PUNISHMENTS.  l&i 

would  a  parricide  ?  The  Marechale  d*Ancre  caus- 
ed a  white  Cock  to  be  killed  at  the  full  of  the 
Moon — Does  such  an  act  of  folly  call  upon  us  to 
burn  alive  the  Marechale  d' Ancre  ? 

Est  modus  in  rebus,  sunt  certi  denique  fines. 
Nee  scatica  dignum  horribili  sectare  flagello. 


CHAP.  VII, 


(If  the  crime  of  unlawful  preaeking.     Story  of  Jiu- 

thony. 

A  CALVANIST  preacher,  if  he  comes  se- 
cretly into  certain  of  the  provinces  for  the  purpose 
of  preaching  clandestinely  to  a  congregation,  is 
punished  with  death,  if  discovered ;  and  those 
who  may  have  furnished  him  with  a  meal,  or  a 
nights  lodging,  are  liable  to  be  sent  to  the  gal- 
leys  for  life. 

In  some  countries,  a  Jesuit  detected  preaching, 
is  hanged.  Is  it  for  the  purpose  of  reveling 
God's  cause,  that  the  Calvanist  and  Jesuit  are  or- 
dered to  be  executed  ?  Do  not  both  parties  justi- 
fy their  deeds  by  the  following  evangelical  law ; 
Whosoever  hearkeneth  not  unto  the  church*  let 


ib4       •  A  COMMENTAHY  ON 

him  be  treated  as  a  heathen  and  a  publican'^.  But 
the  gospel  does  not  enjoin  us  to  hang  either  the 
heathen  or  the  publican. 

Or  have  they  built  upon  the  passage  in  Deute- 
ronomy^ — If  among  you  a  prophet  arise  ^  and  that 
which  he  saith  come  to  pass^  and  he  saith  unto  yoUy 
Let  us  follow  strange  gods  ;  and  if  thy  brother y  or 
thy  son^  or  thy  wife,  or  the  friend  of  thy  heart ,  say 
unto  thee,  come  let  us  follow  strange  gods :  let  them 
straightway  be  killed;  strik^  thou  firsts  and  all  the 
people  after  thee  ? — But  neither  the  Calvinist  nor 
the.  Jesuit  have  said  : — Come  let  us  follow  strange 
gods. 

The  Counsellor  Dubourg^  the  canon  Jehan 
Chauvin,  commonly  called  Calvin,  the  Spanish 
physician  Servetus,  and  Gentilis,  a  native  of  Cala- 
bria, all  worshipped  the  same  God ;  yet  the  Pre- 
sident 3Iinard  cdustd  Dubourgtobe  hanged,  and 
the  friends  of  Dubourg  procured  the  assassination 
of  Minard.  Calvin  caused  Servetus  to  be  burned 
alive  ;  and  had  the  additional  consolation  of  suc- 
cessfully contributing,  in  no  ordinary  degree,  to 
bring  Gentilis  to  the  block :  the  successors  of 
Calvin  burned  x\nthony.  Was  it  reason,  piety, 
or  iustice  that  produced  all  these  murders  ? 

*  Chap.  xlii. 


CRIMES  AND  PIWISHMENTS.  185 

The  story  of  Anthony  is  one  of  the  most  sin« 
galar  we  find  recorded  in  the  annals  of  Fren- 
zy. The  following  account  of  him  I  have  ex- 
tracted  from  a  very  curious  manuscript ;  and  the 
story  is  also  partly  related  by  Jacob  Spohn. 

Anthony  was  born  at  Brieu  in  Lorraine,  of  Ca- 
tholic parents,  and  studied  at  Pont-a-Mousson 
with  the  Jesuits.  At  Metz  he  was  converted  to 
the  protestant  faith  by  the  preacher  Feri.  On  his 
arrival  at  Nancy,  he  was  prosecuted  as  a  heretic ; 
and,  but  for  the  timely  assistance  of  a  friend, 
would  inevitably  have  been  hanged.  He  fled  for 
refuge  to  Sedan,  where,  being  taken  for  a  papist, 
he  narrowly  escaped  assassination. 

As  if  aware  that  same  strange  fatality  attended 
him,  and  convinced  that  his  life  was  safe  neither 
among  protestants  nor  catholics,  he  went  to  Ve- 
nice, and  there  embraced  Judaism.  He  was  sin- 
cere in  the  persuasion,  and  maintained  it,  too,  to 
the  last  moment  of  his  life,  that  the  Jewish  was 
the  only  true  religion ;  and,  that  as  it  had  once 
been  so,  it  would  forever  continue  so  to  remain. 
His  Jewish  brethren  did  not  circumcise  him,  for 
fear  of  giving  ofience  to  the  civil  magistrate  ;  but 
he  was  not,  on  that  account,  the  less  a  Jew  at 
heart.     He  made  no  open  profession  of  his  new 

Aa 


186  A  COMMENTARY  ON 

faith ;  and  having  taken  a  journey  to  Geneva,  in 
the  character  of  a  preacher,  he  became  president 
of  the  college,  and  finally  exercised  the  office  that 
there  gives  the  title  of  Minister* 

The  continual  combat  in  his  breast,  between 
the  doctrine  of  Calvin,  which  he  was  under  the 
necessity  of  preaching,  and  the  religion  of  Moses, 
the  only  religion  in  which  he  believed,  produced 
a  long  illness.  He  became  melancholy,  and  finalr 
ly  quite  deranged  ;  in  his  agonies  he  exclaimed, 
that  he  was  a  Jew.  The  ministers  of  the  gospel 
came  to  visit,  and  endeavoured  to  bring  him  back 
to  reason;  but  he  answered,  *' That  he  adored 
none  but  the  God  of  Israel ;  that  it  was  impossi- 
ble for  God  to  change  ;  and  that  God  could  never 
have  promulgated,  engraven  with  his  own  hand, 
a  law  he  purposed  to  aboiibh."  He  declaimed 
against  Christianity,  but  afterwards  retracted  all 
that  he  had  said  ;  he  wrote  a  profession  of  Faith, 
for  the  purpose  of  escaping  punishment ;  but,  af- 
ter having  written  it,  the  unfortunate  persuasion 
of  his  heart  prevented  him  from  signing  it  j  and 
the  city  council  assembled  to  ascertain  what  was 
to  be  done  with  the  unhappy  man.  The  minority 
of  the  priests,  assembled  for  this  purpose,  were  of 
opinion,  that  he  was  an  object  of  compassion  ;  and 
that  their  first  endeavours  should  be  directed  to 


CRIMES  AND  PUNISHMENTS.  187 

cure  his  mental  disorder,  rather  than  to  inflict  pun- 
ishment on  him.  The  majority,  however,  decid- 
ed that  he  deserved  to  be  burned  alive,  which 
was  accordingly  executed.  This  transaction  took 
place  in  1632.*  A  century  of  reason  and  virtue 
scarcely  suffice  to  expiate  such  a  deed. 


CHAP.  VIIL 

The  Storif  of  Simon  Monii, 

THE  tragical  end  of  Simon  Morin  is  hardly 
less  shocking  than  that  of  Anthony.  In  the  midst 
of  the  gaieties  of  a  splendid  court,  surrounded  by 
gallantry  and  pleasure,  and  during  the  season  of 
greatest  festivity  at  Paris  this  unhappy  wretch 
breathed  his  last  in  the  flames,  in  tlie  year  1663. 
He  was  a  deranged  man,  who  believed  that  he  saw 
visions  ;  and  even  carried  his  folly  so  far  a&to  im- 
aojine,  that  he  was  sent  from  God,  and  gave  out 
that  he  was  incorporated  with  Jesus  Christ. 

The  parliament,  very  judiciously,  condemned 
him  to  imprisonment  in  a  mad-house.  What 
is  exceeding  singular,  there  was,  at  that  time, 
confined  in  the  same  mad-housC;   another  crazy 

*  Jacob  Spohn,  page  500.  and  Guy  Vances. 


iSS  A  COMMENTARY  ON 

tnan  who  called  himself  the  eternal  father.  Simon 
Morin  was  so  struck  with  the  folly  of  his  compa- 
nion, that  his  eyes  were  opened  to  the  truth  of  his 
own  condition.  He  appeared,  for  a  time,  to  have 
recovered  his  right  senses  ;  and,  having  made 
known  his  penitence  to  the  magistrates  of  the  town^ 
obtained,  unfortunately  for  himself,  a  release  from 
confmement. 

Some  time  afterwards  he  relapsed  into  his  form- 
er state  of  derangement,  and  began  to  dogmutize. 
His  unhappy  destiny  made  him  acquainted  with 
St.  Sorlin  Desmarets  who  was  for  some  time  his 
friend ;  but  who  afterwards,  from  jealousy  excited 
by  the  circumstance  of  their  both  belonging  to  the 
same  holy  trade,  became  his  most  deadly  perse- 
xutor. 

Desmarets  was  not  less  visionary  than  Morin  : 
his  first  follies  were  indeed  innocent.  He  punish- 
ed the  tragi-comedies  of  Erigone  and  Mirame, 
with  a  translation  of  the  psalms ;  the  romance  of 
Araine,  and  the  poem  of  Clovis,  to  which  he  add- 
ed the  office  ofthe  Holy  Virgin  in  verse.  He  like- 
wise  published  dithyrambic  poems,  enriched  with 
invectiveis  against  Homerand  Virgil.  From  this 
species  of  folly  he  proceeded  to  another  of  a  more 
serious  nature.  He  became  furious  against  Port 
Royal;  a?  d,  after  avowing  that  he  had  perverted 
some  women  to  Atheism,  commenced  the  career 


CRIMES  AND  PUNlSmfENTS.  189 

of  a  Prophet.  He  pretended  that  God  had  placed 
in  his  hands,  the  key  of  the  treasures  of  the  Apo- 
caiypse  ;  that  with  that  key  he  would  produce  the 
reform  of  all  human  kind  ;  and  that  he  was  about 
to  march  against  the  Jansenists  with  an  army  of 
an  hundred  and  forty  thousand  men. 

Nothing  could  have  been  more  rational  than 
to  have  confined  him  in  the  same  cell  with  Simon 
Morin  :  will  it  be  credited  that  he  met  with  en- 
couragement from  the  Jesuit  Annaty  the  king's 
confessor  ?  He  persuaded  Annat,  that  poor  Simon 
Morin  was  establishing  a  sect  almost  as  danger- 
ous as  Jansenism  itself ;  and,  finally,  having  carri- 
ed his  infamy  so  far  as  to  turn  informer,  he  ob- 
tained from  the  Lieutenant 'Crimmel^  an  order  for 
the  arrest  of  his  unfortunate  rival.  I  scarce  dare 
relate  the  result — Simon  Morin  was  condemned 
to  be  burned  alive. 

When  about  to  conduct  him  to  the  stake,  the 
executioner  found  a  paper  in  one  of  his  stockings 
in  which  he  begged  forgiveness  of  God  for  all  his 
errors — that  alone  ought  to  have  saved  him,  but 
the  sentence  was  irrevocable,  and  he  was  executed 
without  mercy. 

Such  deeds  harrow  up  the  soul— yet  shew  me 


190  A  COMMENT  A.11Y  ON 

the  country,  where  scenes  as  dreadful  have  not 
taken  place  ?  Men  have  every  where  forgotten 
that  they  were  brethren,  and  have  persecuted  each 
other  ^'  even  unto  death."  Thje  most  powerful  con- 
solation to  human  nature  is,  that  those  dreadful 
times  are  past  away,  to  return  uo  more. 


CHAP.  IX 

Of  Witches. 

IN  1749,  a  woman  was  burned  in  the  Bishopric 
of  Wurtzburg,  for  the  crime  of  witchcraft — An 
extraordinary  phenomenon  in  the  present  centu- 
ry. Is  it  possible  that  nations  who  boast  of  their 
reformation  ;  of  trampling  superstition  under  foot; 
who,  indeed,  supposed  that  they  had  attained  the 
perfection  of  reason,  could  believe  in  witchcraft ; 
and,  upon  the  strength  of  such  belief,  proceed  to 
burn  poor  women  accused  of  that  crime,  and  this, 
more  than  an  hundred  years  after  the  pretended 
reformation  of  their  reason  ? 

About  the  year  1652,  a  country-woman,  nam- 
ed  Michelle  Chaudron^  belonging  to  the  little  ter- 
ritory of  Geneva,  met  the  Devil,  in  the  road  lead- 
ing out  of  the  city.   The  Devil  gave  her  a  kiss, 


CRIMES  AND  PUNISHMENTS.  191 

received  her  homage,  and  imprinted  6n  her  up- 
per lip,  and  right  breast,  the  mark  he  is  wont  to 
bestow  on  those  whom  he  chooses  to  distinguish  as 
favorites.  This  seal  of  the  Devil,  is  a  little  mark, 
which  renders  the  skin  insensible,  as  we  are  as- 
sured by  the  demonographical  civilians  of  those 
times. 

The  Devil  then  ordered  Michelle  Chaudron  to 
bewitch  two  girls.  She  obeyed  her  master  punc- 
tually. The  parents  of  the  girls  took  legal  mea- 
sures against  her  for  the  crime  of  witchcraft.  The 
girls  were  interrogated,  and  confronted  with  the 
accused.  They  declared  that  they  felt  a  continu- 
al pricking  all  over  their  bodies,  and  thatthey  were 
bewitched.  Phvsicians,  at  least  those  who  were 
called  physicians  at  that  time,  were  called  in.  They 
examined  the  girls.  They  also  searched  on  the  body 
of  Michelle  for  the  devil's  marks,  called  in  the  state- 
ment of  the  case,  satanic  marks.  Into  one  of  these, 
they  thrust  a  long  needle,  which  produced  no  trif- 
ling degree  of  torture.  The  blood  flowed  readily 
enough,  and  Michelle  gave  sufficient  evidence  by 
her  cries,  that  the  satanic  marks  had  not  rendered 
the  part  insensible.  The  judges  finding  the  evi- 
dence of  Michelle's  being  a  witch,  defective,  pro- 
ceeded to  torture  her  ;  a  method  that  infallibly  far- 
nishes  sufficient  evidence  of  any  fact :  the  wretch- 


19^  A  COMMENTAIiY  (^ 

ed  woman  confessed  during  her  agonies,  every- 
thing they  desired. 

The  physicians  again  sought  the  satanic  marks^ 
They  found  a  little  black  spot  upon  one  of  her 
thighs.  Into  this  they  thrust  the  needle.  The  tor- 
ture the  poor  creature  had  undergone  rendered 
her  insensible  to  the  pain^  and  she  did  not  cry  out . 
of  course,  the  crime  was  fully  proved.  But 
as  a  dawn  of  civilization  then  began  to  appear  in 
the  world,  she  was  strangled  previous  to  being 
burned.  At  the  period  of  which  we  are  speaking, 
(1652.)  every  tribunalof  christian  Europe  resound- 
ed with  similar  sentences ;  and  fire  and  faggot 
were  universally  employed,  as  well  against  witch- 
craft as  heresy.  Nay,  it  was  thought  a  matter  of 
reproach  to  the  Turks,  that  they  had  neither  witch- 
es nor  demoniacs  among  them  ;  and,  the  absence 
of  the  latter,  was  urged  as  a  decisive  proof  of  the 
falsehood  of  their  religion. 

A  zealous  friend  to  public  welfare,  humanity 
and  true  religion,  has,  in  one  of  his  works  in  favor 
of  innocence,  informed  us,  that  christian  tribunals 
have  condemned  to  death,  above  an  hundred 
thousand  persons  accused  of  the  crime  ofwitch- 
ciraft.  If  to  these  judicial  murders  be  added  the 
much  superior  number  of  immolated  heretics,  that 


CRIMES  AND  PUNISHMENTS.  193 

portion  of  the  globe  will  be  found  to  resemble  a 
vast  scafFoKi,  covered  with  victims  and  execution^ 
ers,  and  surrounded  by  judges,  guards  and  spec» 
tators. 


CHAP.  X. 


Of  capital  punishment 

IT  is  an  old  observation,  that  a  man,  after  he  is 
hanged,  is  good  for  nothing  ;  and  that  punish- 
ments intended  to  benefit  society,  should,  at  the 
same  time, /be  useful  to  society.  It  is  very  evi- 
dent, that  a  score  of  robust  highway  men,  con- 
demned for  life  to  labour  on  some  public  work, 
render  through  the  medium  of  their  punishment, 
some  service  to  the  state  ;  and  that  their  deaths 
would  be  of  service  to  no  one  but  the  public  ex- 
ecutioner. Thieves  are  seldom  executed  in  En- 
gland ;  transportation  to  the  colonies  is  substitu- 
ted. A  similar  plan  was  pursued  throughout  the 
vast  empire  of  Russia,  where  the  self- created  pow- 
er of  Elizabeth,  during  its  whole  continuance,  did 
not  require  a  single  execution.  The  superior  geni- 
us who  succeeded  herjf  Catherine  2d,  has  adopted 
the  same  maxim. 

t  In  1?62. 

B  b 


J9*  A  COMMENTARY  ON 

It  has  not  been  discovered  that  crimes  multi- 
ply  in  consequence  of  this  humanity  ;  and  gener- 
ally speaking,  criminals  banished  to  Siberia  have 
been  thoroughly  reformed.  The  same  remark 
has  been  made  with  regard  to  the  English  colo. 
iiies.  This  happy  change  astonishes  us — yet  no- 
thing is  more  natural.  The  convicts  are  obliged 
to  labour  incessantly  in  order*  to  support  life  ;  op- 
portunities for  vice  are  wanting  ;  they  marry,  and 
a  new  population  is  the  consequence.  Oblige 
men  to  labor,  and  you  render  them  respectable. 
It  is  notorious  that  few  crimes  of  an  atrocious 
cast,  are  committed  in  the  country,  except,  per- 
haps, when  too  many  holidays  lead  to  idleness  and 
consequent  debauchery, 

A  Roman  citizen  was  never  capitally  punished, 
except  for  crimes  that  endangered  the  safety  of 
the  republic.  •  They,  our  masters,  our  first  legis- 
lators, were  sparing  of  the  blood  of  their  fellow- ci- 
tizens ;  we  are  prodigal  of  that  of  our  own. 

The  delicate  and  fatal  question,  whether  a  judge 
is  authorised  to  pronounce  sentence  of  death, 
when  the  law  does  not  expressly  point  out  the 
punishment  of  a  crime,  has  often  been  discussed. 
It  was  solemnly  argued  before  the  Emperor  Henr 


CRIMES  AND  PUNISHMENTS,  195 

ry  7th.*  who  decided,  that  no  judge  could  exer- 
cise such  a  power. 

There  are,  certainly,  some  criminal  cases,  ei- 
ther so  rare,  so  complicated,  or  attended  by  such 
extraordinary  circumstances,  that  the  laws  of 
more  than  one  country  have  been  obliged  to  leave 
the  remedies  for  such  singular  occurrences  to  be 
determined  by  the  discretion  of  judges. 

But  where  there  happens  one  case,  in  which 
it  becomes  necessary  to  put  to  death  a  criminal  to 
whom  the  law  does  not  adjudge  death  as  the  mea- 
sure of  his  punishment,  a  thousand  cases  arise, 
in  which  humanity  would  lead  us  to  spare  life,  in 
opposition  to  the  sentence  of  the  law.f 

The  sword  of  Justice  is  committed  to  our 
hands ;  but,  we  ought  rather  to  blunt,  than  ren- 

*  Bodin,  de  Republican  lib.  3.  chap  v. 

f  Infinitely  less  mischief  arises  from  suffering  a  crime  to  go  unpun- 
ished, than  to  sentence  the  criminal  to  capital  punishment  when  un- 
authorised by  an  express  provision  of  law.  It  is  depriving  punish- 
ment of  its  legitimate  character,  that  of  being  inflicted  as  a  conse- 
quence of  crime,  and  not  as  avenging  the  guilt  of  any  particular  indi- 
vidual..  Any  law  permitting  a  judge  to  inflict  the  punishment  of 
death,  secures  impimity  to  him  should  he  exercise  the  power ;  but  it 
cannot  absolve  him  from  the  guilt,  (in  a  moral  point  oi  view)  of  mur- 
der. Besides,  how  is  it  possible  to  conceive  the  existence  ofacrime, 
as  detrimental  to  the  welfare  of  society  as  the  continuance  in  being 
of  the  man  who  commits  would  be  dangerous,  and  yet  that  the  oc- 
currence of  this  very  crime  should  never  be  anticipated  by  an  en- 
lightened legislator  ;  that  it  should  be  as  well  difficult  to  foresee,  as 
to  detei-mine  with  precision  the  acts  by  which  it  shall  be  constituted;! 


196  A  COMMENTARY  ON 

der  its  eds:e  more  keen :  It  remains  in  its  sheath 
in  the  presence  of  royalty — 'tis  to  admonish  us 
that  it  should  be  rarely  drawn. 

In  addition  to  these  reflections,  we  should  not 
forget,  that  there  have  been  Judges  who  delighted 
in  blood ;  such  was  Jeffreys,  in  England  ;  such,  in 
France,  was  the  character  who  received  the  sur^ 
name  of  Goup-tete,^  Those  men  were  never 
born  to  the  magistracy;  nature  intended  them 
for  the  executioners  of  Justice. 


CHAP.  XI. 


Of  the  Execiitio7i  of  Sentences. 

MUST  we  go  to  the  extremities  of  the  earth, 
must  we  have  recourse  to  the  law  of  China,  to 
learn  how  sparing  we  ough  to  be  of  human  blood? 
The  tribunals  of  that  country  have  existed  dur- 
ing a  period  of  more  than  four  thousand  years ; 
yet,  at  the  present  day,  a  peasant,  at  the  ex- 
tremity of  the  empire,  remains  unexecuted, 
until  the  proceedings  in  his  case  have  been 
transmitted  to  the  emperor,  who  causes  them 
to  be  thrice  reviewed  by  one  of  his  tribunals; 

*  The  beheader. 


CREVIES  AND  PUNISHIMENTS.  197 

'after  which,  he  signs  the  warrant  for  execution, 
or  commutation  of  punishment,  or  grants  him  a 
pardon.* 

Let  us  not  travel  so  far  for  examples,  while 
Europe  abounds  with  them.  No  criminal  is  ever 
executed  in  England  whose  death-warrant  is  un- 
signed  by  the  king :  the  same  regulation  prevails 
in  Germany,  and  in  most  countries  of  the  north 
of  Europe.  In  France,  the  same  custom  anciently 
existed  ;  and  always  ought  to  exist  in  every  civil- 
ized nation.  Cabal,  prejudice,  and  ignorance,  may 
dictate  sentences  when  they  are  not  to  be  review- 
ed by  the  throne ;  and  little  local  intrigues  are 
unknown  to,  and  disregarded  by  a  court  employed 
as  it  always  is,  by  objects  of  importance. 

The  supreme  council  of  a  state  consists  of  men 
more  accustomed  to  business,  and  less  liable  to 
prejudice ;  the  habit  of  regarding  great  affairs 
only,  renders  them  less  presuming,  because  less 
ignorant ;  and  they  are,  of  course,  more  capable 

*  The  author  of  the  *•  Spirit  of  Laws^'  who  has  intermingled  so 
many  charming  truths  in  his  work,  seems  to  be  egregiously  mistak- 
en, when,  in  order  to  support  his  assertion,  that  the  vague  sentiment 
of  honor  is  the  support  of  monarchies,  and  virtue  of  republics,  he 
says  of  the  Chinese  :  "  I  am  ignorant  in  what  honor  consists  among 
nations  who  are  governed  by  the  Bastinado.'*  Surely,  because  they 
disperse  the  mob  with  a  cudgel,  and  punish  rogues  and  vagabonds 
with  the  bamboo,  it  does  not  follow,  that  China  is  not  governed  by 
tribunals  that  are  a  mutual  check  to  each  other;  or,  that  is  not  aii  ex- 
cellent form  of  government, — 


198  A  COMMENTARY  ON 

of  judging  than  the  inferior  judge  of  a  province, 
whether  the  whole  state  requires  or  not  an  exam- 
ple of  severity  in  punishment.  In  short,  vsrhen- 
ever  inferior  courts  have  determined  a  case  ac- 
cording to  the  strict  letter  of  the  law^,  an  interpre- 
tation  often  rigorous,  the  supreme  council  miti- 
gates the  sentence  in  obedience  to  the  dictates  of 
general  law,  which  teaches  us,  never  to  sacrifice 
our  fellow-creatures,  but  upon  the  most  evident 
necessity. 


CHAP.  XII. 

Of  Torture, 

ALL  mankind,  being  exposed  to  the  attempt 
of  perfidy  or  violence,  detest  crimes  of  which  they 
may  possibly  be  the  victims.  All  unite  in  the 
desire  of  punishing  the  principal  offender  and  his 
accomplices ;  but  all,  nevertheless,  through  a 
sentiment  of  pity  which  God  has  implanted  in 
our  hearts,  are  roused  to  resist  the  practice  of 
torturing  the  accused  from  whom  a  confession  is 
wished  to  be  extorted.  The  law,  as  yet,  has  not 
judged  them  guilty  ;  and,  a  punishment  is  inflict- 
ed upon  them,  while  we  are  in  a  state  of  uncer- 
tainty as  to  the  crime  they  are  supposed  to  have 


CRIMES  A^U  PUNISHMENTS.  199 

committed,  more  terrible  than  the  death  awarded 
them  when  we  are  satisfied  as  to  their  guilt. 
What !  *  I  am  ignorant  whether  thou  art  guilty  or 
not,  and  I  must  proceed  to  put  thee  to  the  torture 
in  order  to  satisfy  my  doubts ;  and,  if  thou  should- 
est  be  innocent,  I  will  never  recompence  thee  for 
the  thousand  deaths  I  have  made  thee  suf- 
fer instead  of  the  one  which,  at  the  same  time, 
I  was  preparing  for  thee.'  Every  being  shudders 
at  the  thought.  I  shall  not  here  rely  upon  the 
fact  that  St.  Augustine,  in  his  City  of  God,  has 
protested  against  the  practice.  I  will  not  say  that 
the  Romans  never  tortured  any  but  slaves ;  and, 
that  Quintilian,  recollecting  that  even  slaves  were 
men,  revolted  at  such  barbarity. 

If  there  were  but  one  country  in  the  world  that 
had  abolished  the  torture  ;  if  there  were  as  few 
crimes  committed  in^hat  country  as  in  any  other ; 
if,  besides,  that  country  were  more  flourishing 
since  the  abolition  ;  the  one  example  is  suflicient 
for  the  rest  of  the  world.  Let  England  alone 
instruct  other  countries,  although  she  stands  not 
alone  in  this  good  work  ;  the  torture  having  been 
abolished  with  success  in  some  other  countries 
— The  question,  therefore,  is  at  rest.  Shall  not 
nations  then  who  pique  themselves  on  their  polite- 
ness, pride  themselves  also  upon  their  humanity  ? 


200  A  COMMENTAIIY  ON  - 

Will  they  persist  in  an  inhuman  practice,  merely 
because  it  is  the  custom  of  the  country  ?  Reserve 
such  cruelty,  if  it  be  necessary  to  reserve  it,  for 
those  hardened  villains  who  shall  have  assassinated 
the  head  of  a  family  or  the  father  of  his  country  ; 
but  do  not  suffer  the  blot  of  inflicting  on  a  youth, 
for  trival  faults,  the  same  measure  of  punishment 
that  you  would  decree  to  a  parricide,  to  remain 
on  your  country.  I  am  ashamed  of  having  touch- 
ed upon  this  subject,  after  what  has  been  said  by 
the  author  of  the  Esssay  on  Crimes  and  Punish- 
ments— 1  ought  to  have  rested  satisfied  with  ^ 
wishing,  that  mankind  would  often  reperuse  the 
work  of  that  friend  to  humanity. 


CHAP.  XIII. 

Of  certain  sanguinary  tribunals. 

WILL  it  be  believed  that  there  existed  form, 
erly  a  supreme  tribunal  more  horrible  than  the  In- 
quisition ;  and  that  that  tribunal  was  established  by 
Charlemagne  ?  It  was  the  judgment  of  Westpha- 
lia, otherwise  called  the  "  Vhemic  Court, ^^  The 
severity,  or  rather,  the  cruelty  of  this  Court,  was 
carried  so  far  as  to  punish  every  Saxon  with 
death,  who  broke  his  fast  during  the  continuance 


CRIMES  AND  PUNISHMENTS.  201 

• 

of  Lent,  The  same  law  was  also  established  in 
Flanders  and  Franche  Comte  in  the  beginning  of 
the  seventeenth  century. 

In  the  archives  of  a  corner  of  the  country,  cal- 
led St.  Claude,  situated  among  the  most  frightful 
rocks  of  the  county  of  Burgundy,  are  preserved 
the  proceedings  sentence,  and  account  of  the  exe- 
cution of  a  poor  gen  I  man,  named  Claude  Gail- 
Ion,  who  was  beheaded  on  the  twenty  eighth  of 
July  1629.  Reduced  to  great  indigence,  and 
prest  by  extreme  hunger,  he  ate,  on  a  fish  day, 
a  morsel  of  Horse-flesh  which  he  took  from  the 
animal  which  had  been  killed  in  a  neighbouring 
field.  Such  was  his  crime.  He  was  condemned 
as  a  sacrilegious  person.  If  he  had  been  rich, 
and  had  spent  two  hundred  crowns  in  procuring 
an  extravagant  fish  supper,  while  at  the  same  time 
he  suffered  the  poor  around  him  to  die  with  hun- 
ger, he  would  have  been  looked  upon  ^s  a  man 
who  fulfilled  every  duty.  The  following  is  a 
copy  of  the  sentence  pronounced  upon  him. 

^*  Having  seen  all  the  papers  in  the  cause,  and 
heard  the  opinions  of  Doctors  learned  in  the  law, 
we  hereby  declare  the  said  Claude  Guillon  duly 
arraigned  and  convicted  of  having  carried  away 
part  of  the  flesh  of  a  Horse  killed  in  this  town, 

C  c 


2'02  A  COMMENTARY  ON 

of  having  caused  the  said  flesh  to  be  cooked  on 
Saturday  the  3d.  of  March,  and  of  having  eaten 
of  the  same,  &c/' 

What  sort  of  Doctors  must  those  Doctors  of 
law  have  been,  who  gave  their  opinions  ?  Was 
it  among  the  Topinambous  or  among  the  Hot- 
tentots that  these  transactions  happened?  The 
Vhemic  Court  was  much  more  terrible  ;  com- 
missaries secretly  appointed  by  this  tribunal, 
spread  themselves  all  over  Germany,  receiving 
accusations  without  the  knowledge  of  the  accused, 
who  were  condemned  without  being  heard ;  and 
frequently,  when  in  want  of  an  executioner,  the 
youngest  of  the  judges  performed  the  office,  and 
hanged  the  criminal  himself.* 

It  was  necessary,  in  order  to  be  safe  from  the 
assassinations  of  this  court,  to  proem  e  letters  of 
exemption,  and  safe  conducts  from  the  Emperc  rs, 
and  these  were  sometimes  ineffectual.  This 
Court  of  murderers  was  not  entirely  broken  up 
till  the  reign  of  Maximilian  the  1st.  it  should  have 
been  dissolved  in  the  blood  of  its  members.  The 
Venetian  Council  of  Ten  was,  by  comparison 
with  this  court,  a  tribunal  of  mercy. 

*  See  the  excellent  abridgment  of  the  Chronological  History  anft 
Public  law  of  Germany.  A»n.  803» 


GRIMES  AND  PUNISHMENTS.  20c 


CHAr  XIT. 

Of  the  difference  between  political  and  natural  laxvs. 

I  CALL  natural  laws,  those  which  nature  has  ^^ 
dictated  in  all  ages,  and  to  every  people,  for  the 
maintenance  of  the  principles  of  that  Justice  which 
nature,  notwithstanding  all  that  has  been  said 
against  it,  has  implanted  in  our  hearts.  Theft, 
violence,  homicide,  ingratitude  to  indulgent  par- 
ents, perjury  committed  to  injure,  not  to  assist, 
an  innocent  person,  and  conspiracy  against  our 
native  country,  are  positive  crimes,  every  where 
more  or  less  severely,  and  always  justly  punished. 

I  call  those,  political  laws,  that  are  made  to  meet 
a  present  emergency,  whether  for  the  purpose  of 
strengthening  the  power  of  government,  or  the 
prevention  of  future  misfortune. 

For  example ;  it  is  apprehended  that  the  enemy 
may  receive  intelligence  from  the  inhabitants  of  a 
city ;  you  shut  the  gates  immediately,  and  you 
forbid  any  one  to  pass  the  ramparts,  on  pain  of 
death. 


^04  A  COMMENTARY  ON 

Or,  when  a  new  sect  in  religion,  making  a  pa- 
rade, in  public,  of  its  obedience  to  the  sov  n  ign 
power,  cabals  in  secret  for  the  purpose  of  throw- 
ing off  that  obedience  ;  and,  under  the  pretext 
that  it  is  better  to  obey  God  than  man,  and  that 
the  reigning  sect  is  loaded  with  superstition,  and 
ridiculous  ceremonies,  wishes  to  destroy  that 
which  is  deemed  sacred  by  the  state,  you  enact 
the  punishment  of  death  against  those,  who  by 
dogmatizing  publicly  in  favour  of  the  sect,  run 
the  risk  of  instigating  the  people  to  revolt. 

Or,  two  ambitious  men  are  disputing  the  pos- 
session of  a  throne  :  the  most  powerful  succeeds; 
he  punishes  with  death  the  partisans  of  his  weak- 
er antagonist.  Judges  become  the  instrument  of 
the  vengeance  of  the  new  sovereign,  and  the 
supporters  of  his  authority.  Whoever  had  any 
communication,  under  Hugh  Capet,  with  Charles 
of  Lorraine,  ran  the  risk  of  his  life  unless  he  was 
very  powerful. 

When  Richard  the  third,  the  murderer  of  his 
nephews,  was  recognized  as  king  of  England,  a 
jury  condemned  Sir  William  CoUinburn  to  be 
quartered  ;  his  crime  was  the  having  written  to  a 
friend  of  the  Earl  of  Richmond,  who  was  at  that 
time  raising  troops,  and  who  afterwards  reigned 


CRIMBS  AND  PUNISHMENTS.  206 

under  the  name  of  Henry  the  VII :  two  ridiculous 
lines  of  Sir  William's  writing  were  found,  and  they 
sufficed  to  consign  him  to  a  horrible  death.  His- 
tory abounds  with  similar  examples  of  justice. 

The  law  of  retaliation,  is  also  one  of  those  laws 
the  authority  of  which  is  admitted  by  all  nations 
^-The  enemy  has  hanged  one  of  your  bravest 
officers,  who  held  out  in  a  little  ruined  fort  against 
a  whole  army  ;  one  of  their  officers  falls  into  your 
hands  ;  he  may  be  an  estimable  man  for  whom  you 
may  have  gr.  at  regard  ;  yet,  you  hang  him  upon 
the  principle  of  retaliation — You  say,  it  is  the  law : 
that  is  to  say,  because  your  enemy  has  sullied  his 
character  by  one  outrageous  crime,  it  becomes 
necessary  for  you  to  commit  another. 

All  those  laVjTS,  the  result  of  a  sanguinary  policy, 
exist  but  for  a  time  :  we  easily  see  that  they  are 
not  founded  on  principle,  when  we  observe  them 
to  be  temporary.  They  remind  us  of  the  necessi- 
.ty  which,  in  cases  of  extreme  famine,  obliges  men 
to  eat  each  other  :  they  cease  to  devour  men  as  soon 
as  bread  can  be  obtained. 


206  A  COMMENTARY  ON 


CHAP.  XV- 

Of  the  crime  of  nigh  Treason,    Of  Titus  Oate^  ;  and 
of  the  death  of  Jiugustine  de  Thou, 

WE  call  a  blow  aimed  at  the  government  of 
our  country,  or  against  the  sovereign,  who  repre- 
sents it,  High  treason.  It  is  looked  upon  as  a  spe- 
cies of  parricide  ;  and,  therefore,  the  guilt  of  it 
ought  not  to  be  extended  by  law  to  offences  which 
do  not  bear  some  analogy  to  that  crime.  For  if 
you  consider  a  theft  committed  in  a  public  build- 
ing, an  act  of  extortion,  or  even  seditious  words,  as 
high  treason,  you  at  once  lessen  the  horror,  which 
the  crime  of  high  treason,  properly  so  called^ 
ftught  to  inspire. 

In  the  ideas  we  form  of  great  crimes  there 
should  be  nothing  arbitrary.  If  a  theft  commit- 
ted, or  an  imprecation  uttered  against  a  father,  by 
a  son,  be  considered  as  parricide,  you  break  the 
bonds  of  filial  love.  The  son,  in  future,  will  ne- 
ver look  upon  his  father  but  as  an  infuriated  mas- 
ter. Every  thing  overstrained  in  laws  tends  con- 
stantly to  their  destruction. 


CRIMES  AND  PUNISHMENTS.  2^7 

In  crimes  of  ordinary  occurrence,  the  laws  of 
England  are  favourable  to  the  accused  ;  but  in  the 
case  of  high  treason,  more  than  unfavorable.  The 
exjesuit  Titus  Oates,  being  judicially  examined 
by  the  house  of  commons,  and,  having  declared, 
vpon  his  oath,  that  he  has  told  the  whole  truth^ 
subsequently  accused  the  secretary  of  the  duke 
of  York,  afterwards  James  II,  and  many  other 
persons,  of  the  crime  of  high  treason  ;  and  his  de- 
clarations were  received  with  attention.  He  at 
first,  swore  before  the  privy  council,  that  he  had 
never  seen  the  secretary  and  afterwards,  that  he  had 
seen  him.  Noth withstanding  the  informalities 
and  contradiction  accompanying  his  statement, 
the  secretary  was  executed. 

This  same  Titus  Oates,  and  another  witness, 
swore,  that  fifty  Jesuits  had  conspired  to  assassi- 
nate Charles  the  second ;  and,  that  they  had  seen 
the  commissions,  signed  by  father  Oliva,  gene : 
ral  of  the  Jesuits,  for  the  officers  who  were  to 
command  an  army  of  rebels.  The  testimony  of 
those  two  men  was  considered  as  sufficient  to  au- 
thorise the  tearing  out  of  the  hearts  of  several  oF 
those  they  accused  and  the  dashing  them  after- 
wards in  their  faces.  But,  seriously  speaking 
ought  the  testimony  of  two  witnesses  to  be  consi-. 
dered  as  sufficient  to  convict  any  man  whom  they 


208  A  COMMENTARY  6N 

have  a  mind  to  destroy  ?  At  least,  one  would  sup- 
pose, both  ought  not  to  be  notorious  villains  neither 
ought  the  facts  to  which  they  swear  to,  be  beyond 
the  bounds  of  possibility. 

It  is  perfectly  clear,  that  if  two  of  the  most  re- 
spectable magistrates  of  the  kingdom,  were  to 
accuse  any  individual  of  having  conspired  with 
the  muphtij  for  the  purpose  of  circumcising  the 
whole  council  of  state,  the  parliament,  the  members 
of  the  court  of  exchequer,  the  archbishop,  and  the 
doctors  of  Sorbonne  ;  it  would  be  in  vain  for  these 
two  magistrates  to  swear  that  they  had  seen  the 
letters  of  the  muphti ;  every  one  would  suppose 
that  they  were  both  deranged,  and  that  no 
credit  was  to  be  attached  to  their  declaration. — It 
was  (juit-e  as  extravagant  to  suppose,  that  the 
general  of  the  Jesuits  was  raising  an  army  in 
England,  as  it  would  be  to  suppose,  that  the 
muphti  had  sent  over  for  the  purpose  of  at- 
tempting to  circumcise  the  court  of  France.  But, 
unhappily,  Titus  Oates  was  believed ;  that 
there  might  remain  no  species  of  atrocious  folly 
unthought  of  by  the  heart  of  man. 

The  laws  of  England  do  not  consider  persons 
as  involved  in  the  guilt  of  any  conspiracy,  who 
may  be  privy  to  it,  and  do  not  inform  :  they  con- 


QRIMES  AND  PUNISHMENTS.  209 

sider  an  informer  to  be  as  infamous,  as  the  con- 
spirator is  guilty.  In  France,  those  who  are  pri- 
vy to  a  conspiracy  are  liable  to  the  punishment 
of  death,  if  the v  do  not  communicate  their  know- 
ledge.  Lewis  XI,  against  whom  conspiracies 
were  frequent,  made  this  terrible  law;  which 
would  never  have  been  thought  of  by  a  Lewis  XII 
or  a  Henry  the  IV. 

This  law  not  only  obliges  a  worthy  man  to  turn 
informer,  and  divulge  a  crime  which  by  proper 
advice,  and  firm  conduct,  he  might  prevent ;  but, 
it  exposes  him  likewise  to  be  punished  as  a  calum* 
niator  ;  nothing  being  more  easy,  than  for  con- 
spirators to  take  measures  to  avoid  conviction. 

This  was  precisely  the  case  of  the  truly  res- 
pectable Augustine  de  Thou,  counsellor  of  state, 
and  the  son  of  the  only  good  historian  of  whom 
France  can  boast,  equal  to  Guicciardini  in  under- 
standing, and  perhaps  superior  in  point  of  impar- 
tiality.  A  conspiracy  was  formed,  rather  against 
cardinal  Richelieu,  than  against  Lewis  XIII :  the 
object  of  the  conspirators  was  not  to  betray  France 
to  any  enemy  ;  for  the  principal  author  of  the  plot 
was  the  king's  only  brother,  who  certainly  did  not 
design  to  destroy  a  kingdom  to  which  he  was  there 
the  heir  apparent ;  there  being  between  him  and 

Dd 


2k0  A  COMMENTARY  ON 

the  throne  no  one  but  a  dying  brother,  and  two 
children  then  in  the  cradle. 


De  Thou  was  culpable  neither  in  the  sight  of  God 
nor  man.  One  of  the  agents  of  Monsieur, ihe  king's 
only  brother,  of  the  Duke  de  Bouillon^  sovereign 
prince  of  Sedan,  and  of  the  grand  Equerry  d^Effiat 
Cinq  Mars^  had  communicated,  verbally,  the 
plan  of  their  conspiracy  to  De  Thou,  who  went 
immediately  to  Cinq- Mars,  and  did  his  utmost 
to  dissuade  him  from  the  enterprise.  If  he  then 
had  informed  against  the  conspiracy,  he  would 
have  been  destitute  of  the  means  of  establishing 
the  truth  of  his  allegation ;  he  would  have  been 
overwhelmed  by  the  denials  of  the  heir  apparent 
of  the  Crown,  of  a  sovereign  prince,  and  of  the 
king's  favourite  ;  as  well  as  by  the  public  execra- 
tion. He  would  have  exposed  himself  to  the  fate 
of  a  vile  calumniator.  The  chancellor  Seguier 
even  admitted  the  fact  I  am  endeavouring  to  es- 
tablish, at  the  time  De  Thou  was  confronted  with 
the  grand  Equerry.  It  was  during  the  confronta- 
tion, that  De  Thou,  addressing  himself  to  Cinq- 
Mars,  in  the  following  words,  which  are  reported 
in  the  statement  of  the  case,  said  ;  "  Do  you  not 
remember.  Sir,  that  not  a  day  passed  over  our 
heads,  that  I  did  not  mention  that  business  t% 
you,  for  the  purpose  of  dissuading  you  from  itV^ 


CRIMES  AND  PUNISHMENTS.  Sit 

Cinq- Mars  acknowledged  that  it  was  true.  De 
Thou  deserved  the  thanks  of  his  country  rather 
than  death :  such  would  have  been  the  decision  of 
the  tribunal  of  human  equity.  At  least  he  deserv- 
ed not  death  from  Cardinal  Richelieu ;  but  human- 
ity was  not  Richelieu's  virtue.  In  this  particular 
case,  surely,  we  may  observe  something  stronger 
than,  summumjusy  summa  injuria.  The  sentence 
of  death  of  this  .s^ood  man,  declares  his  crime  to 
have  been :  "  The  having  a  knowledge  of^  and 
a  participation  in,  the  said  conspiracies.^^  It  does 
not  state  also,  becaube  he  did  not  inform.  Hence 
it  would  appear,  that  to  discover  that  a  crime  is 
about  to  be  committed,  is  to  be  criminal ;  and 
that  one  merits  death,  sometimes,  for  being  in 
possession  of  eyes  and  ears. 

The  least  we  can  say  of  such  a  sentence  is,  that 
it  was  not  dictated  by  justice,  but  was  the  act  of 
a  few  commissioners.  The  letter  of  this  mur- 
derous  law  was  positive ;  but,  I  appeal  not  only 
to  lawyers,  but  to  all  mankind,  to  say,  whether 
the  spirit  of  the  law  was  not  perverted  ? 


212  A  COMMENTARY  ON 


CHAP.    XVI. 

Of  the  revealing  of  crimes  C^efore  commission  J  hy 
religious  confession. 

JAURTGNI  and  Balthazar  Gerard,  who  assas- 
sinated the  prince  of  Orange,  William  I ;  the 
dominican  Jacques  Clement;  Chatel  Ravaillac,  and 
all  the  other  parricides  of  those  days,  confessed 
themselves  before  the  commission  of  their  crimes. 
Fanaticism  during  that  deplorable  age,  was  car- 
ried to  such  excess,  that  confession  was  but  the 
addition  of  an  inducement  to  the  perpetration  of 
villany :  crime  became  sacred — because,  confes- 
sion was  a  holy  sacrament. 

Strada  himself  says,  that  "  Jaurigni  non  ante 
facinus  aggredi  sustinuk  quam  expiatam  nexis 
animam  apuddominicanumjacerdotem  ctslestipane 
firmaverit.  Jaurigni  dared  not  undertake  that 
action  without  having  his  soul,  purged  by  con- 
fession to  a  dominican  friar,  fortified  by  the  holy 
bread." 

It  appears  from  the  answers  to  the  interrogato- 
tics  put  to  Ravaillac,  that  this  wretch,  on  quitting 


CRIMES  AND  PUNISHMENTS.  213. 

the  order  of  the  FeuUlantSy  and  wishing  to  enter 
that  of  the  Jesuits,  addressed  himself  to  the  Jes- 
uit D'Aubigni ;  and,  after  giving  him  an  account 
of  several  visions  that  he  had  seen,  shewed  him 
a  knife,  on  the  blade  of  which  a  heart  and  a  cross 
were  engraven  ;  and  said  to  him  :  This  heart  sig- 
nifies^ that  the  heart  of  the  king  ought  to  be  mov- 
ed  to  make  war  upon  the  Hugenots*  Perhaps  if 
D'Aubigni  had  had  zeal  and  prudence  enough  to 
have  informed  the  king  of  those  words,  and  had 
described  the  man  who  uttered  them,  the  best  of 
kings  might  have  escaped  assassination. 

On  the  twentieth  day  of  August,  1610,  three 
months  after  the  death  of  Henry  IV,  while  the 
hearts  of  all  Frenchmen  were  yet  bleeding,  the 
attorney  general  St.  Servin,  of  still  illustrious 
memory,  moved  that  all  Jesuits  should  be  requir- 
ed to  sign  the  four  following  articles : 

1.  That  the  council  is  superior  to  the  pope. 

2.  That  the  pope  cannot  deprive  the  king  of 
any  of  his  rights,  by  excommunication. 

3.  That  ecclesiastics  are  as  completely  sub- 
ject to  the  king,  as  other  persons. 

4.  That  any  priest  who  is  apprised,  by  confes- 
sion,  of  the  existence  of  a  conspiracy  against  the 
king  or  state,  is  bound  to  give  notice  oi'  it  to  the 
civil  magistrate. 


214  A  COMMENTARY  ON 

On  the  22d.  of  the  same  month,  the  parliament 
published  a  decree,  forbidding  Jesuits  to  under- 
take the  instruction  of  youth  without  signing  the 
foregoing  four  articles :  but  the  court  of  Rome 
was  at  that  time  so  powerful,  and  that  of  France 
so  weak,  that  the  decree  was  entirely  disregarded. 

One  fact  is  also  worthy  of  remark  while  noti- 
cing the  subject  of  confession,  which  is,  that  this 
very  court  of  Rome  which  when  the  life  of  a  so- 
vereign was  in  question,  was  unwilling  that  con- 
fessors should  divulge  what  was  revealed  in  con- 
fession, yet  obliged  them  to  reveal  to  the  inquisi- 
tion, the  names  of  those  priests  whom  females 
should  accuse  in  confession  of  havmg  seduced,  or 
attempted  to  seduce  them.  Paul  IV,  Pius  IV, 
Clement  VIII,  and  Gregory  XV  required  such 
communications.  This  was  a  very  dangerous 
snare  for  confessors  and  their  penitents.  It  was 
turning  a  sacrament  into  a  register  of  accusations, 
and  even  required  sacrilege  ;  for,  by  the  ancient 
canons,  particularly  those  of  the  lateran  council 
held  under  Innocent  III,  any  priest  divulging 
of  confession  of  any  nature  whatsoever,  was  liable 
to  be  degraded  and  imprisoned  for  life.  Thus 
we  find  four  different  popes,  in  the  sixteenth  and 
seventeenth  centuries,  who  order  a  sin  of  impu- 
rity to  be  divulged,  and  yet  do  not  permit  the  crime 


CRIMES  AND  PUNISHMENTS.  215 

of  parricide  to  be  revealed.  A  woman,  confessing 
herself  to  a  carmelite  friar,  acknowledges  or  feigns, 
that  a  cordelier  has  seduced  her  ;  the  carmelite  is 
bound  to  inform  against  the  cordelier.  But,  let  a 
fanatical  assassin,  who  believes  he  shall  serve 
God  by  murdering  his  king,  consult  his  confessor 
upon  this  very  case  of  conscience  ; — the  confes- 
sor is  guilty  of  sacrilege,  if  he  interpose  to  save 
the  life  of  his  sovereign. 

This  absurd  yet  horrible  contradiction,  is  one 
of  the  unhappy  consequences  of  that  continual 
opposition,  w^hich  has  subsisted  for  so  many  ages 
between  ecclesiastical  and  municipal  laws.  The 
citizen  found  himself  entangled  on  many  occasi- 
ons, either  in  the  crime  of  sacrilege  or  that  of  high 
treason  ;  and  the  distinctions  of  right  and  wrong 
were  buried  in  a  chaos,  from  which  they  have  not 
yet  emerged. 

The  confession  of  sins  has  been  authorised,  in 
every  age,  by  the  practice  of  almost  every  nation^ 
The  ancients  accused  themselves  during  the  per- 
formance of  the  misteries  of  Orpheus,  oflsis,  of 
Ceres,  and  those  of  the  island  of  Samothracia. — 
The  Jews  confessed  their  sins  on  the  day  of  so- 
lemn expiation,  and  continue  the  practice  to  this 
day.     A  penitent  selects  bis  confessor,  who  be- 


2i6  A  COMMENTARY  ON 

comes  a  penitent  in  turn  ;  and  each  of  them  alter- 
nately receives  thirty  laslies  with  a  whip  while  re- 
citing the  formula  of  confession,  consisting  of 
thirteen  words,  the  sense  of  which  consequently 
must  be  general.  •     - 

None  of  these  confessions  were  ever  other  thah 
general ;  and,  of  course,  could  never  serve  as  pre- 
texts for  those  secret  consultations,  so  often  made 
use  of  by  fanatical  penitents  for  the  purpose  of  sin- 
ning with  impunity— a  pernicious  corruption  of  a 
salutary  institution.  Confession,  the  greatest 
check  to  crime,  became,  in  times  of  confusion  and 
licentiousness,  an  incentive  to  wickedness ;  and, 
it  is  more  than  probable,  that  for  this  reason,,  so 
many  christian  communities  have  abolished  a  holy 
institution,  which  could  not  but  appear  to  them  as 
dangerous  as  it  was  useful. 


CRIMES  AND  PUNISHMENTS,  ,817 


CHAP.  XVII. 

pf  Counterfeiting  inon^y* 

THE  crime  of  counterfeiting  the  coinof  acoun^ 
try,  is  deemed,  and  justly  too,  high  treason  in  the 
second  degree  ;  to  rob  all  the  individuals  of  a  state, 
is  to  betray  the  state  itself.  But  the  question  may 
be  asked,  whether  a  merchant,  who  imports  ingots 
from  South  America,  and  converts  them  into  good 
money ^  be  guilty  of  high  treason !  and  merit 
death  ?  In  almost  every  country,  death  is  the  pu- 
nishment provided  for  thiscrime-. — yet,  he  has 
robbed  no  one  :  on  the  contrary,  he  has  increased 
the  circulation  of  specie,  and  done  the  state  a  ser- 
vice. But  he  has  arrogated  to  himself  the  right 
of  his  sovereign ;  he  robs  him,  in  taking  to  him- 
self the  small  profit  that  the  king  receives  upon  the 
coinage.  He  has  indeed  coined  good  money  \  bi;t 
bis  example  holds  out  a  temptation  to  others  to 
coin  bad.  Still,  death  is  a  severe  punishment  for 
his  crime.  1  once  knew  a  lawyer,  who  wished 
such  criminals,  as  useful  and  ingenious  hands,  to  be 
condemned  to  work  in  the  royal  mint,  with  fetters 
pn  their  legs,^ 


E  e 


2J8  A  COMMENTARY  ON 


CHAP.  XVIII. 

Of  domestic  theft. 

IN  some  countries  a  trifling  domestic  theft 
is  punished  with  death.  Is  not,  1  ask,  this  dis- 
portionate  punishment,  as  well  dangerous  to  socie- 
ty, as  a  temptation  to  cammit  larceny  ?  Let  a  mas- 
ter prosecute  his  servant  for  a  theft  of  a  small  a- 
mount ;  upon  the  execution  of  the  unhappy  wretch, 
society  regards  the  master  with  horror  :  they  then 
feel,  that  nature  and  such  laws  are  at  variance,  and 
consequently  the  law  will  be,  in  future,  unexecu- 
ted. 

What  then  is  the  result  ?  Masters  who  are  rob- 
bed, unwilling  to  tnconnXtr  public  opprobrium^ 
content  themselves  with  discharging  a  dishonest 
servant,  he  steals  from  some  one  else,  and  finally, 
becomes  familiar  with  iniquity.  The  punishment 
of  death  being  the  consequence  of  a  considerable 
robbery,  as  well  as  of  a  trifling  theft ;  he  will  na- 
turally steal  to  as  great  an  amount  as  possible ; 
and,  at  last,  will  not  hesitate  at  the  commissiori 
of  murder  in  order  to  escape  detection. 


CRIMES  AND  PUNISHMENTS.  219 

But,  if  the  punishment  is  proportioned  to  the 
crime ;  if  the  domestic  guilty  of  theft  be  condemn- 
ed to  labor  on  the  public  works  ;  then,  a  master 
would  not  hesitate  about  his  conviction,  because 
the  public  feeling  would  not  scand  in  his  way  ;  and 
theft  would  be  less  frequent.  Experience  furnish- 
es the  lesson  J  that  rigorous  laws  are  productive  of 
crime. 


CHAP.  XIX. 

Of  Suicide, 

THE  celebrated  Du  Verger  de  Haurane^  Abbot 
of  St.  Cyran,  and  generally  considered  as  the  foun- 
der of  Port- Royal,  wrote,  about  the  year  1608,  a 
treatise  upon  Suicide,  now  become  one  of  the 
scarcest  books  in  Europe. 

'^  The  decalogue,  says  he,  orders  us  not  to  kill. 
Self  murder  seems  to  be  included  in  the  precept  as 
well  as  the  murder  of  our  neighbour  :  therefore, 
if  situations  occur,  in  which  it  is  lawful  to  kill  our 
neighbour,  others  may  occur,  in  which  suicide 
becomes  lawful." 

^'  No  one  ought  however,  to  attempt  his  own 


230  A  COlklMENTATlY  ON 

life,  without  first  consulting  his  reason.  Public  au- 
thority, which  represents  God,  may  dispose  of  our 
lives.  Human  reason,  being  a  ray  of  the  eternal 
light,  may  also  represent  the  reason  of  God.'' 

St.  Cyran  extends  this  argument,  which,  after 
all,  is  but  a  sophism,  to  a  great  length.  However, 
I  must  confess,  that  when  he  descends  to  particu^* 
lar  instances  in  support  of  it,  he  is  not  easily  an- 
swered. "  A  man  says  he,  may  kill  himself  for  the 
service  of  his  prince ;  for  the  good  of  his  coun- 
try ;  for  the  advantage  of  his  family. '^ 

It  does  appear  that  we  could  with  justice  refuse 
our  approbation  to  a  Codrus  or  a  Curtius.  What 
prince  would  dare  to  punish  the  family  of  a  man 
who  devoted  himself  for  his  service  ? — Nay,  there 
is  no  soveseign  who  would  dare  to  leave  them  un- 
rewarded. St.  Thomas  said  the  same  thing  be- 
fore the  time  of  St.  Cyran.  But  it  is  not  necessary 
to  have  recourse  to  St.  Thomas,  to  St.  Bonaven^ 
ture,  or  Hauranc,  to  feel,  that  a  man  who  dies  for 
his  country  is  entitled  to  our  highest  commenda- 
tion. 

St.  Cyran  concludes,  that  that  which  it  is  praise- 
worthy to  do  for  others,  it  is  lawful  to  do  to  our- 
selves. The  arguments  of  Plutarch,  of  Seneca, 
and  of  Montaigne,  on  this  subject,  are  well  known, 


CRIMES  AND  PUNISHMENTS.  m 

as  are  those  of  an  hundred  other  philosophers  who 
have  written  in  favor  of  suicide.  The  subject 
has  been  exhausted.  I  do  not  here  propose  to 
defend  an  action  which  the  law  prohibits  ;  but 
neither  the  old  nor  new  testament  forbid  a  man  to 
shake  offlife,  when  it  becomes  insupportable.  The 
Roman  laws  did  not  forbid  self  murder.  On  the 
contrary,  a  law  of  Marcus  Antoninus,  which  was 
never  repealed,  provides :  "  If  your  father^  or 
your  brother,  unconvicted  of  any  crime,  shall, 
from  pain,  throui^h  weariness  of  life,  in  despair^ 
or  from  madness,  put  an  end  to  his  life,  his  will 
shall  nevertheless  be  deemed  valid  ;  or  if  he  dies 
intestate,  his  heirs  inherit  according  to  law."  * 

Notwithstanding  that  humane  law  of  our  anci- 
ent masters,  we  draw  upon  a  hurdle,  and  pierce 
with  a  stake,  the  body  of  the  man  who  dies  a  vo- 
luntary death ;  and,  at  the  same  time,  we  ren- 
der his  memory  infamous.  We  dishonor  his  fa- 
mily as  far  as  lies  in  our  power.  We  punish  the 
son,  because  he  has  lost  his  father  ;  and  the  wi- 
dow, because  she  is  deprived  of  her  husband. 
We  even  confiscate  the  property  of  the  deceased ; 
which  is,  in  fact,  tearing  from  the  living  a  patri- 
mony which  belongs  to  them.  This  custom,  like 
many  others,  is  derived  from    our  canon  law ; 

*  Cod.  1.  De  bonis  corum  qui  sibi  mortem,  &c.  Leg.  3.  4.  cod. 


222  A  COMMENTARY  ON 

which  depives  of  the  rites  of  burial,  those  who 
commit  suicide  :  The  conclusion  drawn  from  this 
fact,  is,  that  no  one  can  inherit  on  earth  the  pro- 
perty of  a  man,  who  is  deemed  to  have  forfeited  an 
inheritance  in  heaven.  The  canon  law,  under 
the  head^  de panitentia^  assures  us,  that  Judas  com- 
mitted a  greater  sin  in  hanging  himself,  than 
when  he  betrayed  our  Saviour, 


CHAP.  XX. 


Of  a  certain  species  of  multilation, 

WE  find  in  the  digest,  a  certain  law  of  the  eni- 
peror  Adrianf  which  decrees  death  as  the  punish- 
ment of  physicians  who  should  make  eunuchs, 
either  by  castration,  or  by  bruising  the  testicles. 
The  possessions  of  those  who  procured  themselves 
to  be  castrated,  were  also  confiscated  by  this  law. 
Origen  might  have  been  punished  under  this  law, 
for  having  submitted  to  the  operation,  in  conse- 
quence of  a  too  literal  interpretation  of  the  passage 
of  St.  Mathew  :  '^  There  be  eunuchs^  which  have 
made  themselves  eunuchs  for  the  kingdom  of 
Heaven, 

\  Ad  legem  Comeliam  de  sicarik. 


CRIMES  AND  PUNISHMENTS.  233 

The  face  of  things  was  changed  under  succeed.  • 
ing  Emperors,    who  adopted  the  Asiatic  luxury, 
particularly  in  the  lower  empire  ;  at  Constantino- 
ple eunuchs  became  Patriarchs,  and  even  com- 
manded the  armies  of  the  empire. 

In  our  own  times,  it  is  the  custom,  at  Rome,  to 
castrate  children  in  order  to  render  them  worthy 
of  being  musicians  to  the  Pope  ;  so  that  castrato 
and  musico  del  papa ^  now  are  synonimous.  Not 
long  since,  signs  were  to  be  seen  at  Naples,  over 
the  doors  of  certain  barbers,  on  which  were  writ- 
ten  in  large  letters  Qui  si  castrano  marivigliosa" 
mente  iputti — Boys  castrated  here  in  the  very  best 
manner. 


m>  A  a)MMEl!lTARY  Oa!ir 


CHAP  XXI. 


(}f  the  conUscaiion  eonsequi^t  upon  all  the  erimes 
which  have  been  mentioned, 

IT  is  a  received  maxim  of  the  bar,  that^  he 
who  forfeits  Rfe^  forfeits  his  effects — a  maxim 
in  greatest  rigor  in  countries  where  custom  holds 
the  place  of  principle.  Thus,  as  we  already  have 
remarked,  the  children  of  those  who  volunta- 
rily terminate  their  wretched  days  are  doomed 
to  perish  with  hunger,  as  if  they  were  the  chil-- 
dren  of  a  murderer.  So  that,  in  every  case,  an 
entire  family  is  punished  for  the  crime  of  an  in- 
dividual. 

Thus  the  father  of  a  family  having  been  sen- 
tenced  to  the  galleys  for  life,  in  an  arbitrary  man- 
ner, either  for  having  illegally  harbored  a  preach- 
er*, or  having  heard  a  sermon  preached  in  a  ca- 
vern or  solitary  place,  the  wife  and  children  are 
reduced  to  beggary.  That  system  of  Jurispru- 
dence  which  consists  in  taking  the  bread  out  of 
the  mouths  of  orphans,  and  in  giving  to  one  man 
the   property  of  another,    was  unknown  during 

•  See  the  edict  of  may  14th,  1724,  published  at  the  soUicitation,  and 
tinder  the  insjaection  of  Cardinal  Richelieu. 


* 


CRLMES  AND  PUNISHMENTS,  2^5 

the  whole  period  of  the  existence  of  the  Ronmn 
republic.  Sylla  first  introduced  it  with  his  pro- 
scriptions, and  his  example,  one  would  think, 
ought  scarcely  to  authorise  the  practice.  Arid^ 
indeed,  this  system  which  seems  to  have  been  dic- 
tated by  avarice  and  inhumanity,  was  not  enforced 
by  Caesar,  by  Trajan,  nor  by  the  Antonines 
whose  names  are  still  pronounced  with  respect  by 
every  civilized  nation.  Under  Justinian,  confis. 
cation  took  place  only  in  cases  of  high  treason. 

It  would  seem  that  during  the  times  of  feudal 
anarchy,  princes,  and  feudal  lords,  not  being  very 
rich,  endeavored  to  augment  their  possessions  by 
the  conviction  of  their  subjects,  and  intended  to  fur- 
nish themselves  with  a  revenue  to  arise  olit  of 
crime.     Law  being,  with  them,  entirely  arbitrary, 
and  the  Roman  Jurisprudence  unknown,  cruel  and 
ridiculous  customs  prevailed.  But,  in  modern  times 
the  power  kings  is  founded  upon  immense  and 
certain  revenues,  and  their  treasures  do   not  re- 
quire to  be  increased  by  the  miserable  remains 
ofthe  fortune  of  an  unfortunate  family  which  are 
ceded,  generally  speaking,  to  the  first  one  whore- 
quests  them — Should  one  citizen  be  permitted  to 
fatten  on  the  blood  of  another  ? 

In  the  provinces  of  France  where  the  Roman 

F  f 


226  A  COMMENTARY  ON 

law  is  establ^ -ihed,  confiscation  does  not  exist,  ex. 
cept  within  the  jurisdiction  of  the  parliament  of 
Thoulouse.  It  does  not  prevail  in  some  of  the 
provinces  where  the  customary  or  unwritten  feu- 
dal lawf  is  in  force  as,  for  example,  in  the  Bour. 
bonnais,  the  provinces  of  Berri,  Maine,  Poitou, 
and  Bretagne,  or,  at  least,  real  estate  is  exempted. 
It  was  established  at^,Calais  formerly',  but  the  En- 
glish abolished  the  custom  when  they  were  in 
possession  of  the  place.  It  is  a  surprising  fact, 
that  the  inhabitants  of  the  capital  live  under  a  much 
more  rigorous  code  of  laws,  than  the  small  cities ; 
so  true  is  it,  that  a  system  of  jurisprudence  is  of- 
ten established  by  fortuitous  circumstances,  with- 
out regularity,  without  uniformity,  like  the  cotta- 
ges in  a  village. 

Who  would  believe  that  in  the  year  1673,  that 
brilliant  aera  of  France,  the  Attorney  general 
Oiner  lalon,  would  have  expressed  himself,  in  full 
parliament,  on  the  subject  of  a  young  lady  named 
Canillac,  in  the  following  manner  P  f 

**  1*1  the  XIII  of  Deuteronomy,  God  says  :  If 
thou  comest  into  a  city  where  idolatary  reigneth, 
thou  shalt  surely  smite  the  inhabitants  of  that  city 


f  See  Butler's  Horx  Juridicac.  Phil.  edit,  page 
if  Journal  du  Falaisy  Vol.  1.  pag.  444. 


CRIMES  AND  PUNISHMEN^TS.  ii27 

with  the  edge  of  the  sword,  destroying  it  utterly, 
and  all  that  is  therein.  And  thou  si  gather  all 
the  spoil  thQbof  into  the  midst  of  the  street,  and 
shalt  burn  with  fire  the  city,  and  all  the  spoil  there-, 
of,  for  the  Lord  thy  God ;  and  it  shall  be  an  heap 
forever  ;  and  there  shall  cleave  nought  of  the  cur- 
sed thing  unto  thine  hand." 

'^  In  like  manner,  in  the  crime  of  high  treason, 
the  children  were  deprived  of  their  inheritance, 
which  became  forfeited  to  the  king.  Ncboth  be- 
ing prosecuted,  quia  maledixerat  regi,  king  jihd^b 
took  possession  of  his  effects.  Davidy  being  in- 
formed that  Mephihosheth  had  rebelled,  gave  all 
his  possessions  to  Ziba^  who  brought  him  the 
news  :  Tuasint  omnia  quefuerunt  MephiboshethJ*^ 

The  question  to  be  determined  was,  who  should 
inherit  the  paternal  estate  of  Mademoiselle  de 
Canillac ;  an  estate  formerly  forfeited  by  her  fa- 
ther, ceded  by  the  king  to  a  lord  of  the  treasury, 
and  by  him  granted  to  the  testatrix.  In  this  cause, 
relating  solely  to  the  possessions  of  a  native  of 
AuvQrgne,  a  French  attorney  general  quoted  the 
example  of  Ahab,  king  of  a  part  of  Palestine,  who 
confiscated  the  vine  of  Naboth,  after  assassina- 
ting the  owner  witK  the  sword  of  justice;  an  ac- 
tion become  even  proverbial  for  its  turpitude,  and 


228  A  COMMENTARY   ON 

the  applicatvsii  of  which  is  intended  to  inspire 
mankind  wi,\i  a  horror  of  usurpation.  Surely, 
the  story  of  the  vine  of  Naboth  boiWio  analogy 
to  the  question-about  the  property  of  Mademois- 
elle de  Canillac.  The  murder  of  Mephibosheth 
the  grandson  of  Saul,  and  son  of  Jonathan,  the 
friend  and  protector  of  David,  and  the  confiscation 
of  his  goods,  had  not  the.  least  affinity  with  the  will 
of  that  lady. 

With  this  sort  of  pedantry,  with  this  folly  of 
quoting  matters  foreign  to  the  subject,  with  such 
ignorance  of  the  first  principles  of  human  nature, 
with  such  prejudices  ill  conceived,  and  worse  ap- 
plied, has  jurisprudence  been  commented  on  by 
men  who  have  enjoyed  reputation  in  their  profes- 
sion. 1  leave  it  to  my  readers  to  supply  reflec- 
tions it  would  Ipe  superfluous  to  insert. 


CRIMES  AND  PUNISHMENTS.  22$ 


CHAP.    XXII, 

Of  criminal  proeeedingSy  and  of  some  other  forms  of 

procedure. 

IF  it  should  ever  happen  m  France,  that  some 
of  our  too  rigorous  customs  be  softened  by  the 
laws  of  humanity,  without,  however,  affording 
greater  facility  to  crime,  I  am  inclined  to  think 
that  a  reformation  will  take  place  in  those  proceed- 
ings, in  the  enactment  of  which  our  legislators 
appear  to  have  been  influenced  by  too  rigid  a  zeal. 
Our  criminal  law,  in  many  respects,  seems  direc- 
ted entirely  to  the  destruction  of  the  accused.  It 
is  the  only  uniform  system  of  law  in  the  whole 
kingdom,  and  it  ought  to  be  as  terrible  to  the 
guilty,  as  favorable  to  the  innocent.  In  England, 
mere  false  imprisonment,  is  a  ground  for  recover- 
ing damages  from  the  first  minister  of  state,  if  he 
orders  it  ;  but,  in  France,  an  innocent  man  who 
has  been  immured  in  a  dungeon,  who  has  under- 
gone the  torture,  has  no  consolation  of  that  kind 
to  hope  for,  no  one  to  look  to  for  damages  ;  and 
he  returns  to  society  with  a  ruined  reputation.. 
Why  ?  Because  his  joints  have  been  dislocated — r 
that,  shouldexcite  pity,  and  inspire  respect.    The 


230  A  COMMENTARY  ON 

discovery  of  crimes,  it  is  said,  requires  severity  : 
it  is  the  war  of  human  justice  against  iniquity — 
But,  even  in  a  state  of  war,  there  is  something  Uke 
generosity  and  compassion.  The  soldier  is  com- 
passionate— Shall  the  lawgiver  alone  encourage 
the  exercise  of  barbaritv  ? 

Let  us  here  compare  the  Roman  method  of 
conducting  criminal  proceedings  with  our  own. 
With  them,  the  witnesses  were  publicly  examined 
in  the  presence  of  the  accused,  who  had  the  pri- 
vilege of  cross-examining  them,  either  by  him- 
self or  his  counsel.  This  method  of  proceeding 
was  frank  and  noble  ;  it  was  full  of  Roman  mag- 

nanimity. 

With  us,  every  thing  is  transacted  in  secret.  A 
single  judge,  attended  only  by  his  clerk,  hears  all 
the  witnesses,  who  are  examined  separately^ 
This  method,  establislied  by  Francis  1st.  was  con- 
firmed by  the  commissioners  appointed  to  ar^ 
range  and  modify  the  ordinances  of  Lewis-Xl  V  . 
1670  J  its  confirmation  was  owing  to  a  mistake. 
They  took  it  into  their  heads  in  reading  the  code 
de  Testibtis,  that  the  words,  testes  intrare  judicii 
secreturriy^  meant,  that  witnesses  were  examined  in 

*  See  Bomier,  Tit  VI,  art.  11.  des  ivformatiom. 


CRIMES  AND  PUNISHMENTS.  231 

private ;  but  secretiim  here  means  the  Judge's 
chamber.  Intrare  secretum,  if  intended  to  signir- 
ty  private  examination,  would  not  be  Latin.  A 
solecism  was  the  foundation  of  this  part  of  our 
Jurisprudence. 

The  witnesses,  in  criminal  cases,  are  general- 
ly the  dregs  of  the  populace,  whom  the  Judge,  du- 
ring private  examination,  may  make  say  whatever 
he  pleases.  These  witnesses  are  examined  a  se- 
cond time,  but  still  privately  ;  and,  if,  upon  their 
.second  examination,  they  retract  what  they  said 
during  the  first,  or  vary  in  essential  circumstan- 
ces, they  are  proceeded  against  for  perjury.  So 
that  when  a  simple  but  honest  man  unable  to  ex- 
press himself  with  clearness,  but  with  every  dis- 
position totell  the  truth,  recollecting  that  he  has 
said  too  much,  or  too  little,  that  he  has  misunder- 
stood  the  j  udge,  or  that  the  j  udge  has  misunderstood 
him,  retracts  what  he  has  said,  from  a  principle  of 
justice,  he  is  punished  as  a  villian.  Jle  is  forced  to 
adhere  to  false  testimony  to  avoid  the  consequen- 
ces of  perjury. 

The  accused,  if  he  flies,  exposes  himself  to  cer- 
tain conviction  ;  and  this  whether  his  crime  be 
clearly  proved  or  not.  Some  writers  on  Jurispru- 
dence,  indeed,  have  maintained,  that  contumacy 


2Sa  A  COMMENTARY  6^ 

ought  not  alone  to  be  a  sufficient  ground  for  con-^ 
viction ;  but,  that  the  charge  ought  to  be  fully 
proved.  But  othersyless  enlightened,  though,  per- 
haps, more  generally  folio  wed,  are  of  the  contra- 
ry opinion :  they  advance  the  doctrine,  that  the 
flight  of  the  accused  is  full  proof  of  his  crime- 
that  the  contempt  exhibited  by  him  for  justice,  in 
refusing  to  appear,  deserves  the  same  degree  of 
punishment  that  would  follow  a  solemn  convic- 
tion. Thus  it  depends,  upon  the  sect  of  lawyers 
to  which  the  judge  may  happen  to  belong  whether 
an  innocent  man  be  convicted  of  acquitted. 

« 
One  other  great  abuse  also  prevalent  in  French 

Jurisprudence  is,  that  the  reveries,  and  errors, 
sometimes  having  the  cruellest  tendency,  of  aban- 
doned men,  who  have  undertaken  to  give  publi- 
city to  their  sentiments  on  legal  matters,  are  con- 
sidered as  law* 

Two  ordinances,  during  the  feign  of  Lewis 
the  1 4th,  were»  promulgated,  which  are  in  force 
throughout  the  kingdom.  In  the  first,  which 
relates  entirety  to  civil  proceedings,  the  judges 
are  forbidden  to  give  judgment,  in  a  civil  suit, 
by  default,  if  the  demand  is  not  proved;  but  in 
the  second,  regulating  criminal  cases,  contains  no 
provision  that  the  accused,  if  no  evidence  be  pro- 
duced against  him,    shall  be  discharged.     Ex- 


CRIMES  AND  PUNISHMENTS.  233 

traordinary  fact !  The  law  provides  that  he  from 
whom  a  trifling  sum  of  money  is  demanded,  shall 
not  be  adjudged  to  pay  it  without  the  debt  is  esta- 
blished— but  when  Jife  is  in  question,  it  is  a  ;?2o  t 
point,  whether  he  ought  not  to  be  convicted  if 
contumacious,  although  the  crime  be  not  proved* 

Suppose  the  accused  withdraws  himself  from 
justice :  you  proceed  to  seize  and  take  an  inven- 
tory of  his  property  :  you  do  not  even  wait  un- 
til the  proceeding  is  finished.  You  have  as  yet 
no  evidence  of  his  crime :  you  do  not  know 
whether- he  is  innocent  or  guilty;  and  you  com- 
mence proceedings  by  forcitig  upon  the  defendant 
immense  unnecessary  expense. 

It  is  the  penalty,  you  say,  of  his  disobedience 
to  the  warrant  issued  against  him — But,  I  ask^ 
is  not  the  extreme  rigor  of  your  criminal  practice, 
the  cause  of  his  disobedience  ?  A  man  is  ac- 
cused of  a  crime,  you  proceed  to  immure  him  im- 
mediately in  a  frightful  dungeon  ;  you  suffer  no  one 
to  have  communication  with  him  ;  he  is  loaded  with 
fetters,  as  if  already  convicted.  The  witnesses 
who  testify  against  him  are  examined  in  secret, 
and  in  his  absence.  He  sees  them  only  for  a  mo- 
ment at  the  confrontation  ;,and  then,  before  he  has 
heard  their  testimony,  he  is  bound  immediately 

to  stase  his  objectibns  to  the  witnesses,  and  at  the 

G  g 


x)34  A  COMMENTARY  ON 

same  time,  to  name  the  witnesses  in  sup- 
port  of  those  objections ;  and  he  has  not  the  riglit 
to  crossexamine  them  after  the  reading  of  their 
testimony.  If,  however,  he  should  convince  the 
witnesses,  that  they  may  have  exaggerated  some 
facts,  omitted  others,  or  have  been  mistaken  in 
some  of  the  particulars  they  have  related,  the 
fear  of  punishment  will  induce  them  to  persist  in 
perjury.  And,  if  circumstances  admitted  by  the 
accused  when  interrogated,  be  differently  related 
by  the  witnesses,  that  alone  will  be  sufficient 
grounds  for  ignorant  or  prejudiced  judges  to 
condemn  an  innocent  man. 

What  man  is  there  that  such  a  proceeding 
would  not  terrifv?  Where  is  the  innocent  man 
who  can  be  sure  of  acquittal  ?  O  judges  !  are  you 
desirous  that  the  accused  should  not  fly?— Fur- 
nish him  with  the  means  of  defence. 

The  law  seems  to  oblige  tlie  magistrate  to  con- 
duct himself  towards  a  prisoner,  rather  as  his 
enemy,  than  as  his  judge.  This  judge,  how- 
ever, possesses  the  power  of  confronting  the  ac- 
cused with  the  witnesses,  or  omitting  it  altoge- 
ther*.— Why  is  so  essential  a  thing  as  confron- 
tation suffered  to  be  optional  ? 

*  Etsi  besoin  est  coiifrontez,  (And,  ifnece^sarv.  confvont  them.)  says 
the  Ordinance  of  1670.  art.  1.  tit.  XV.  " 


CRIMES  AND  PUNISHMENTS.  235 

The  practice  adopted,  however,  is,  in  this  re- 
spect, contrary  to  a  law  which  is  equivocal ;  there 
is  always  a  confrontation;  but  the  judge  does 
not  always  confront  all  the  witnesses,  he  omits  of- 
ten those  whose  statements  appear  to  him  to  be 
unimportant.  Such  a  witness,  though  he  say 
nothing  against  a  man  in  the  body  of  his  testimony, 
may,  upon  confrontation,  testify  in  his  favor.  The 
witnesess  also  may  have  forgotten  circumstances 
favorable  to  the  accused ;  the  judge  at  first  may 
not  have  felt  the  weight  of  thqse  circumstances, 
and  may  npt  have  reduced  them  to  writing.  It 
is,  therefore,  extremely  important  that  all  the 
witnesses  should  be  confronted  with  the  accused, 
and  that  such  confrontation  be  not  optional  with 
the  judge. 

When  it  is  a  criminal  charge  the  accused  can» 
not  have  the  benefit  of  counsel  to  defend  him  ;  he 
flies— a  step  to  which  every  maxim  of  law  incites 
him — But,  he  may  be  convicted  in  his  absence, 
whether  the  crime  with  which  he  is  charged  be 
proved  or  not.  Strange  doctrine  !  If  a  civil  suit 
to  recover  a  sum  of  money  be  brought  against  a 
man,  a  judgment  by  default  p^nnot  be  obtained 
without  proof  of  the  debt— yet,  if  a  matter  invol- 
ving his  life  occur,  he  may  be  sentenced  in  his 
absence,  without  a  neceissitjr  for  a  shadow  of  evU 


2j3i6  A  COMMENTARY  ON  * 

dence  to  substantiate  his  crime.  The  law  then 
holds  money  in  more  estimation  that  it  does  hfe  ? 
O  ye  Judges  !  consult  the  pious  Antoninus,  and 
the  good  Trajan — they  suffered  not  the  absent  to 
be  condemned,  f 

Your  laws  allow  an  extortioner,  or  a  fraudulent 
bankrupt  the  benefit  of  counsel,  and  very  often  de- 
ny it  to  one  who  may  be  an  honest  man.  If  there 
can  be  shewn  one  single  case,  where  innocence 
has  been  made  to  triumph  through  the  exertions 
ofan  advocate,  the  injustice  of  depriving  any  one 
of  the  advantage  is  manifest. 

The  president  Lamoignon  said,  in  speaking  a- 
gainst  this  law,  *'  that  the  advocate,  or  counsel, 
which  it  was  the  practice  to  assign  to  the  accused, 
was  not  a  privilege  granted  by  the  ordinances,  nor 
by  the  laws  of  the  kingdom — it  was  a  privilege 
derived  from  the  law  of  nature,  a  law  more  an. 
cieiit  than  any  human  institution.  Nature,  said 
he,  points  out  to  every  man  the  necessity  of  hav- 
ing recourse  to  the  talents  of  others,  when  he  finds 
himself  in  a  situation  where,  they  are  indispensible 
to  his  safe  guidance,  and  he  feels  that  he  cannot 
conduct  himself;  he  seeks  assistance  when  un- 

+  Ui^.  1=  1.  tit.  de  abscrtibusp  and  1.  a.  tit.  depanis. 


CRIMES  AND  PUNISHMENTS.  237 

able  to  defend  himbcif  with  his  own  strength.  Our 
ordinances  have  taken  away  from  accused  persons 
so  many  advantages,  that  the  least  we  can  do,  in 
justice,  is  to  preserve  those  few  that  remain  to 
them,  inviolate ;  and  most  particularly  the  benefit 
of  counsel.  And,  if  our  proceedings  be  compa- 
red with  those  of  the  Romans,  and  other  nations, 
it  will  be  found,  that  in  no  nation  are  they  so  rigo- 
rous, as  in  France,  particularly  since  the  ordinance 
of  1539.  t 

The  proceedings  are  still  more  rigorous  since 
the  ordinance  of  1670.  They  would  have  been 
much  less  so,  if  all  the  commissioners  had  thought 
like  Monsieur  de  Lamoignon.  The  parliament 'of 
Thoulouse  has  a  singular  degree  of  accuracy  in 
weighing  the  testimony  of  witnesses.  In  other  pla- 
ces demi-proofs  are  admitted,  which  is  at  most 
admitting  doubts,  there  being  no  such  thing  as 
demi-tiuth ;  but  at  Thoulouse  they  admit  of  quar- 
ters and  eighths  of  a  proof.  We  may,  for  exanv- 
pie,  look  upon  hearsay,  as  a  quarter,  upon  another 
hearsay,   more  vague  still,  as  an  eighth  ;  so  that 
eight  rumours,    which  are  but  the  echo  of  un- 
founded report,   may  become  a  complete  proof ; 
and  upon  such  evidence  as  this  it  was,  that  John 
Calas  was  sentenced  to  the  wheel.    The  Roman 
law  required  proofs  to  be  luce  meridiana  clariores^ 

+  Proces  verbal  de  l*ord.  p.  163. 


238  A  COMMENTARY  ON 


CHAP.  XXIII. 

llie  idea  of  a  reform  suggested, 

THE  Magistracy  is  in  itself  so  respectable, 
that  the  only  country  in  the  world  where  the  office 
is  venal,  sincerely  desires  a  deliverance  from  the 
evil  resulting  from  this  custom.  They  anxious- 
ly desire  to  see  justice  dispensed  by  the  advocate, 
^who  has  contributed  by  his  industry,  by  his  wri- 
tings, and  by  his  eloquence  to  its  defence  and 
support.  Perhaps  we  might  then  see  a  regular 
systena  of.  Jurisprudence  arise,  the  result  of  en- 
lightened exertions^ 

Shall  the  same  cause  be  forever  decided  one 
way  in  the  provinces  and  another  in  the  capital  ? 
must  the  same  man  be  always  right  in  Britanny 
and  wrong  in  Languedoc  P  nay;  there  are  as  many 
systems  of  Jusprudence  as  there  are  cities  ;  and  in 
the  same  parliament  the  maxims  of  pne  chamber 
are  not  the  maxims  of  another. 

To  shew  the  astonishing  contrariety  of  law  in 
the  sanfie  kingdom,  we  have  only  to  state,  that  in 
Paris,  a  man  who  has  been  domiciled  in  the  city 
a  year  and  a  day,  becomes  a  citizen.  In  Franche^ 


CRIMES  AND  PUNISHAIENl's.  '239 

Compte^  a  free  man,  who,  during  a  year  and  a 
day,  has  inhabited  a  house  held  in  Mortmain,  be- 
comes a  slave  :  his  collateral  relations  cannot  in- 
herit the  property  he  may  have  acquired  elsewhere^ 
and  his  children  are  deprived  of  their  inheritance, 
if  they  have  been  a  year  absent  from  the  house  in 
which  their  father  died. 

When  limits  are  to  be  d^etermined  between  the 
civil  law  and  the  ecclesiastical  authority,  wJiat 
endless  disputes  ensue  !  Who  can  point  out  those 
limits  ?  Who  can  reconcile  the  eternal  contradic- 
tions of  the  treasury  and  the  bench  ?  In  short,  why, 
in  certain  countries,  do  we  find  sentences  which 
do  not  state  the  facts  and  reasons  upon  which  they 
are  grounded  ?  Are  they  ashamed  to  avow  their 
reasons  for  rendering  judgment.  And  why  do 
not  those  who  condemn  in  the  name  of  their  sove- 
reign, present  their  sentences  of  death  for  recon,- 
sideration  to  him,  before  they  are  put  in  ejcecution! 

Look  around  us  where  we  will,  we  find  no- 
thing but  a  confused  scene  of  contradiction,  hard- 
ship, uncertainty,  and  arbitrary  power.  Thence 
arises  our  desiae  to  render  more  perfect  the  laws 
upon  which  our  lives  and  fortunes  depend, 

TEE  EJ^D. 


DATEDUE 


APR  1  4  7008 


Brigham  Young  University 


3  1197  00162  8004 


■.■'.»